Independence of the Department of Justice: A fraught history. Trump’s appointment of Matthew Whitaker unlawfully bypasses Senate-confirmed officers

There is a long tradition of presidents appointing loyalists as Attorney General.  Robert F. Kennedy and Griffin Bell come immediately to mind as the brother and childhood friends of John Kennedy and Jimmy Carter.  Professor Jed Shugerman has critically explored that history at length in a work in progress.

But there was an important post-Watergate shift which sought to buttress the independence of the office of the Attorney General and the entire Department of Justice from the presidency.  In 1977 the passage of 28  USC 508 governed succession in the Department of Justice in the event of a vacancy of the office of the Attorney General – head of the Department of Justice, itself created in 1870, a subject explored in the Stanford Law Review by Fordham legal historian Shugerman.  The 1977 Act was preceded by  the 1976 Omnibus Crime Control Act 42 USC 3701 that created a ten year term for the Director of the Federal Bureau of Investigation who must be confirmed by the Senate.  The clear policy thrust is to strengthen independence of the Department of Justice and Attorney General. It is that which is threatened by Mr. Trump’s appointment of Mark Whitaker as Acting Attorney General to assume oversight of  an investigation of the President himself. I discuss the legality of Trump’s appointment in the post linked below- GWC

Source: OTHERWISE: Trump’s appointment of Matthew Whitaker unlawfully bypasses Senate-confirmed officers

ABA Formal Opinion 483: Lawyers’ Obligations After an Electronic Data Breach or Cyberattack

This week, the ABA released a formal opinion clarifying (somewhat) the obligations lawyers have when a data breach occurs involving (or having a substantial likelihood of involving) material client information.

Just in time for Cybersecurity Awareness month 2018.

You can find Formal Opinion 483 here.

OTHERWISE: U.S. Courts: Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts

Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts Published on September 13, 2018 …

Source: OTHERWISE: U.S. Courts: Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts

The Judicial Conference today approved changes to the Judiciary’s Model Employment Dispute Resolution (EDR) Plan to cover interns and externs and to extend the time for initiating EDR complaints from 30 to 180 days. The Conference’s Judicial Resources Committee will consider further changes to the model plan at its next meeting. The Director of the Administrative Office of the U.S. Courts also reported on the recruitment of a Judicial Integrity Officer in the Administrative Office and the expansion of judicial, staff, and law clerk orientations and education dealing with workplace harassment.

In addition, the Chairs of the Committees on Codes of Conduct and Judicial Conduct and Disability reported to the Conference on proposed amendments to the Codes and Conduct Rules responsive to the recommendations contained in the June 2018 Report of the Federal Judiciary Workplace Conduct Working Group. The proposed amendments were published today for public comment.

The amendments include provisions that state:

  • A judge has an affirmative duty to promote civility, not only in the courtroom, but throughout the courthouse.
  • A judge should neither engage in nor tolerate workplace misconduct, including comments or statements that could reasonably be interpreted as harassment, abusive behavior, or retaliation for reporting such conduct.
  • A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that another judge’s conduct violated the Code. The action should be reasonably likely to address the misconduct, prevent harm to those affected by it, and promote public confidence in the integrity and impartiality of the Judiciary.
  • In order to file a misconduct complaint, an individual does not have to be subject to alleged misconduct.
  • Confidentiality obligations of employees should never be an obstacle to reporting judicial misconduct or disability.
  • A judge has an obligation to safeguard complainants from retaliation. Retaliation for reporting misconduct constitutes judicial misconduct.
  • A judge’s failure to call to the attention of the relevant chief judge clearly identified information reasonably likely to constitute judicial misconduct constitutes judicial misconduct.
  • An express reference to workplace harassment within the definition of misconduct.

OTHERWISE: The Real McCoy: Good Intentions Cannot Overrule Client’s Instructions | Legal Ethics in Motion

POSTED BY  ALICE KERR  ON OCT 12, 2018 IN  ATTORNEY-CLIENT RELATIONSHIP The Real McCoy: Good Intentions Cannot Overrule Client’s Instructio…

Source: OTHERWISE: The Real McCoy: Good Intentions Cannot Overrule Client’s Instructions | Legal Ethics in Motion

Update: The matter of McCoy v. Louisiana first appeared on this blog on October 17, 2017. The United States Supreme Court granted certiorari to decide whether a criminal defense attorney is constitutionally permitted to concede his or her client’s guilt over the defendant’s objections.

Robert McCoy was charged with three counts of first-degree murder and pleaded not guilty. McCoy’s parents hired Larry English to take over the case after McCoy had his assigned counsel removed.  English concluded that the evidence against McCoy was overwhelming and the best strategy for avoiding the death penalty would be to admit guilt at trial and plead mental incapacity at sentencing. McCoy insisted on his innocence and objected to any admission of guilt.  Two days before trial, McCoy petitioned the court to terminate English’s representation. English also supported this request.  However, the trial court refused McCoy’s request.

At the guilt phase of the trial, English told the jury that McCoy “committed [the] three murders.” McCoy then testified in his own defense. The jury found McCoy guilty on all three counts. During the penalty phase, English again conceded that McCoy committed the crimes, but asked for mercy given McCoy’s mental and emotional issues.  The jury returned three death verdicts. The Louisiana Supreme Court, upheld McCoy’s conviction and sentence.  The Louisiana Supreme Court concluded that English had the authority to concede guilt as a trial strategy. The Louisiana Supreme Court upheld English’s conduct by relying on the Louisiana Rules of Professional Conduct Rule 1.2(d), which states, “a lawyer shall not. . . assist a client, in conduct that the lawyer knows is criminal or fraudulent.” The LA Supreme Court opined that had English presented McCoy’s alibi defense, English could be implicated in perjury, given English’s disbelief in McCoy’s alibi.

In a 6-3 decision, the United States Supreme Court reversed the Louisiana Supreme Court’s ruling and held that McCoy’s Sixth Amendment rights were violated.  The decision discussed the allocation of authority in the lawyer-client relationship, considering two points: (1) who has the ultimate authority to decide the objectives of representation, and (2) who has the authority to decide how to carry out those objectives?  The SCOTUS decision echoes Louisiana RPC Rule 1.2 (a), which states that a lawyer “shall abide by the client’s decisions concerning the objectives of representation” and provides that “in a criminal case, a lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”

Ultimately, the defendant has the right to choose the objective of his defense. The lawyer then crafts the strategy around how to best achieve that objective. Thus, McCoy had the right to maintain his innocence, have his case presented, and let the jury decide.  English, irrespective of his good intentions, foreclosed that right by controlling every aspect of the case to the detriment of his client’s objectives.

Read the United States Supreme Court decision here.

Call for Papers: New Voices in Professional Responsibility—Works in Progress Session AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

The Professional Responsibility Section is pleased to host a works in progress session during the 2019 Annual Program. Papers selected will be presented at the session along with commentary from a scholar in the field. Papers can be on any professional responsibility topic from professors with seven years or less of full-time teaching experience. Submitted drafts should be near completion with the expectation that they will be submitted for publication during the spring law review submission cycle.

Papers should be submitted to Melissa Mortazavi, via email at melissa.mortazavi@ou.edu, no later than September 17, 2018, with the subject line: PR Works in Progress.