We are pleased to welcome Jennifer Pacella of the City University of New York, Baruch College, Zicklin School of Business as guest blogger. Jennifer is Assistant Professor of Law at the School of Business. She has taught Fundamentals of Business Law, The Law of Business Organizations, and the Law of GRC (Governance, Risk Management, and Compliance) & Whistleblowing. Her research interests include attorney whistleblowing and the Dodd Frank Act. She received her J.D. from SUNY Buffalo, her Master’s in Political Science from UNC, and her Bachelor’s in Political Science from SUNY Geneseo. Her prior professional experiences include clerking for the Third Circuit Court of Appeals and working as an associate at Shearman & Sterling LLP in New York City in its Financial, Securities & Commercial Law group. I am an admirer of her recent work on in-house counsel and whistleblowing. Welcome, Jennifer!
What ethical obligations do lawyers have if they harbor serious doubts about the legality of their client’s plan of action? What if that client is the federal government (the Treasury Department and the Federal Reserve Bank of New York) and the plan of action is bailing out A.I.G. to avert (or mitigate) a nationwide financial crisis?
Yesterday (June 15, 2015), Judge Thomas C. Wheeler of the United States Court of Federal Claims issued a ruling, which–among other things–rebuked the law firm of Davis Polk for blessing the transaction which gave the government a nearly 80 percent equity stake in A.I.G. The ruling cites an email from a Davis Polk lawyer in which the lawyer noted that the government “is on thin ice and they know it.”
The full story and the link to the 75 paged ruling are here.
by G.J. Annas, J.D., M.P.H., and Sondra S. Crosby, M.D.Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health (G.J.A., S.S.C.), and the Department of Medicine, Boston University School of Medicine (S.S.C.
Beyond the elimination of black sites, attorneys will have to stand with physicians who want to maintain their ethics (and follow, among other legal standards, the Geneva Conventions), support health professionals in their refusals to torture, and refuse to give CIA agents and contractors prospective legal immunity for violating human rights laws. And in all contexts, physicians should act only in ways consistent with good and accepted medical practice, with the consent of their patients.
It is a rare event when the top managers of a major, venerable U.S. law firm are being criminally prosecuted for fraud. So those of you who plan on teaching Chapter 6, Part II (Duties to Third Parties and to the Law) may want to take advantage of the ongoing trial involving top executives of the law firm of Dewey & Leboeuf, which collapsed in bankruptcy in May 2012. The trial is expected to last (by some accounts) until Labor Day.
Opening statements began on May 26, 2015 in the New York Supreme Court before Justice Robert M. Stolz. The defendants, former chairman Steven Davis, executive director Stephen DiCarmine, and chief financial officer Joel Sanders were charged with concealing Dewey & LeBoeuf’s failing financial situation from lenders and creditors, including insurers that invested in a debt offering to raise about $150 mililion.
Natasha Lydon from Above the Law is reporting on the trial. Her recent post about the opening statements can be found here.
For background on the case, The New York Times has a fairly informative article here.
Posted by Karen Tani
I’ve been really looking forward to this new release, from Cambridge University Press: Women and Justice for the Poor: A History of Legal Aid, 1863–1945, by former guest blogger Felice Batlan (Illinois Institute of Technology/Chicago-Kent College of Law). Here’s the abstract:
This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women’s history in dialogue, it demonstrates that nineteenth-century women’s organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor.
by Jed Rakoff, D.J. (SDNY)
“…Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them. Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that even a Whitney North Seymour would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.
Conservative Attorneys General talk the tort reform talk when they woo their donors and primary voters. But when faced with the chance to be populist heroes and put cash in the state coffers they often turn into aggressive and innovative plaintiffs lawyers. -gwc
The “civil Gideon” movement presses on.
The Artigas family was facing eviction because they had brought their granddaughter – aged 12 – into their home – an illegal tenancy the landlord said. The child’s mother had died in an auto accident. They couldn’t afford a lawyer.
A Push for Legal Aid in Civil Cases Finds Its Advocates – NYTimes.com
By ERIK ECKHOLM and IAN LOVETT
But the Artigas were lucky. They traveled to the nearby county courthouse and joined the tense line that gathers most mornings outside the Eviction Assistance Center, a legal aid office in the same building as the housing court.
This isn’t exactly current news but nonetheless very noteworthy. A Delaware Supreme Court en banc opinion, Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, Del. Supr., No. 614, 2013 (July 23, 2014), explicitly endorsed the Garner exception to the attorney-client privilege in a Section 220 books-and-records proceeding. Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970) recognized an exception “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, [and] protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance.” Huge victory for shareholders who can show cause, and huge loss for those who think that the attorney-client privilege should be absolute.
Also noteworthy is the resignation of Maritza Munich, the general counsel of Walmart International. Munich had tried to stop a bribery scandal as it was unfolding at Walmart. Michael Scher of the FCPA Blog provides some interesting detail on the scandal and Munich’s resignation.
For teaching purposes, one can construct a hypothetical based on the facts of the Wal-Mart case and ask the student to put herself in the shoes of an in-house attorney (such as Munich) who uncovers serious law violations within her corporation: what would she do? Good opportunity to talk about how to comply with Sarbanes-Oxley 307 (SOX 307) and the meaning of an attorney “appearing and practicing before the Commission” under SOX 307 covers. If you want to add a psychological perspective to the discussion, I talked about the pressures of being in-house counsel in prior work.
According to yesterday’s NY Times, attention is now turning to how GM’s legal department handled the complaints about the defective ignition switches.
Great article to share with students when discussing Model Rule 1.13.
You can read more about General Counsel Michael Milikin here: http://www.gm.com/company/corporate-officers/michael-millikin
Capital defense attorneys – like others who represent the despised – have long been held in high regard by the legal profession. “A lawyer’s representation of a client”, RPC 1.2 (c) tells us “does not constitute an endorsement of the clients political, economic, social or moral views or activities”. One would hope, we know now in vain, that the United States Senate would appreciate that point. Instead conservative Democrats from “red states” abandoned “Debo P. Adegbile, who headed the NAACP Legal Defense and Education Fund when it represented Mr. [Mumia] Abu-Jamal decades after his conviction, could not overcome a concerted campaign by Republicans, conservative activists and law enforcement organizations, still infuriated by the murder of Police Officer Daniel Faulkner.” – gwc
US Attorney John Craft, of the Eastern District of Texas may have run afoul of the scope of prosecutorial ethics rules when making Facebook comments and posts regarding President Barack Obama, and Trayvon Martin. Neither of the comments were a direct violation of Rule 3.8 and Rule 3.6 addressing trial publicity, because they were not made in direct response to a matter Craft, or the Eastern District of Texas were working on. But, Craft may have indirectly violated Rule 3.8(f) as a US Attorney, because of Attorney General Eric Holder’s public statements that the Department of Justice would continue their ongoing investigation of the Trayvon Martin incident after the controversial verdict, and his statements that the Department of Justice’s would also continue to challenge voting rights cases most notably in Texas, in addition to the DOJ’s defense of The Affordable Care Act or “ObamaCare”. This means Craft may have violated prosecutorial ethics by making extrajudicial comments in a public manner that prejudices these pending matters, in violation of both Rules 3.8 and 3.6. For more on this matter read Debra Cassens Weiss’s article on the ABA Journal’s website titled “Assistant US attorney’s derogatory Facebook comments about ‘Dalibama’ and Trayvon Martin are probed.”
Is the U.S. Department of Justice picking an unnecessary fight about legal ethics?
This summer’s big criminal justice ethics issue pits the United States of America against the Kentucky Bar Association, whose Board of Governors issued an opinion on how the state’s ethics rules apply to criminal defense lawyers and prosecutors. Kentucky is unusual in that its Supreme Court allows “[a]ny person or entity aggrieved or affected by a formal opinion of the Board” to obtain state Supreme Court review of the bar’s opinion. The United States, acting through the two U.S. Attorneys of the state, has asked the Kentucky Supreme Court to review the opinion of the state bar.
I wonder why the government has standing to bring the case. No one seems to have noticed, but the Kentucky Supreme Court’s interpretation of the state’s ethics rules would not have the force of law in federal court. So even if the bar’s opinion has some force of law in state court proceedings, it is not binding as far as federal prosecutors are concerned. Are federal prosecutors nevertheless “aggrieved or affected”?
Before getting to the “standing” question, here’s some background: Suppose that a defendant is arrested by the DEA on drug charges and his defense lawyer seeks to negotiate an agreement for the prosecution to drop or reduce some of the charges, or for the prosecution to make a lenient sentencing recommendation, if the defendant pleads guilty. The plea bargain will be mutually beneficial, because a guilty plea saves the public the expense and burden of a trial. But the guilty plea does not guarantee finality. Although there are few grounds for appeal or other post-conviction challenges after a guilty plea, there are some. A defendant may challenge the legality of the sentence. If the defendant later has second thoughts, he may also seek to vacate the guilty plea on the ground that it was not knowing or voluntary or was the product of incompetent legal advice or assistance. That’s what happened in Padilla v. Kentucky, where defense counsel did not accurately tell the non-citizen client of the immigration consequences of his guilty plea.
The prosecution, seeking to preserve resources further and to achieve greater finality, may require a defendant, as part of the plea agreement, to waive the right to appellate and other post-conviction review. The prosecution may or may not provide additional leniency in exchange for this waiver. Most courts honor these waivers unless the defendant can show that the waiver was ineffective because he was coerced into the waiver agreement or given misinformation that led him to accept it. The principal significance of waiving post-conviction procedures is that the defendant will be forgoing the opportunity to challenge an unlawful or excessive sentence. However, the defendant will also lose the opportunity to claim that the guilty plea was the product of incompetent representation in violation of the Sixth Amendment right to effective assistance of counsel. For example, if the defendant pled guilty because his lawyer inaccurately advised him about the consequences or a plea or about the alternatives, the defendant will lose the opportunity to claim that he was denied competent representation as a result.
From a public perspective, these waiver provisions may seem offensive, because there is an interest in affording a constitutional remedy in the cases, however rare, where defendants enter ill-advised guilty pleas. But for most defendants, giving up the right to bring a Sixth Amendment ineffective assistance of counsel claim is worth the benefit of a lower sentence. Harsh sentencing, particularly in federal cases, has given prosecutors enormous power to extract waivers of rights in addition to those that are necessarily waived by pleading guilty.
Quite a few bar associations, including the Kentucky Bar, have examined the developing practices and concluded that there is an ethics problem insofar as defendants are being asked to waive the right to competent counsel. Two problems, actually.
First, there is a problem for defense lawyers: A defense lawyer advising the defendant whether to accept the plea offer has a reputational interest in avoiding a future claim of incompetent representation. This may lead the lawyer to overvalue the deal. Whether the risk that the lawyer will give self-interested advice is great enough to trigger the conflict rule in all cases, without regard to the lawyer’s perception of whether a viable ineffective assistance claim might be brought, is subject to debate. Most bar associations examining the question, including that of Kentucky, say that no defense lawyer can advise on the subject, even with client consent, although two bar associations take a case-by-case approach. Although an ineffective assistance of counsel claim does not result in civil liability, some of the opinions also find by analogy that the waiver provisions offend the rule against lawyers limiting their malpractice liability.
Second, there is a derivative problem for prosecutors. Assuming defense counsel will be acting unethically in advising the defendant about the plea offer, may a prosecutor extend an offer that includes a waiver of ineffective assistance of counsel claims? The Kentucky Bar and some others have concluded that the prosecutor would be violating Rule 8.4(a), which prohibits inducing another to violate an ethics rule.
Enter the United States of America, which has asked the Kentucky Supreme Court to review and vacate the Kentucky state bar’s opinion. But why? Under Kentucky’s choice of law rule, the state court interpretations of the state’s ethics rule should not be binding in federal court. They are, at most, advisory.
In Kentucky, under Rule 8.5(b)(1) a lawyer plays by the rules of the court in which the lawyer appears. That means that a criminal defense lawyer in a federal criminal case in Kentucky must play by the rules of the federal court. Although the Kentucky federal courts subject lawyers to discipline for violating the professional conduct rules of the Kentucky Supreme Court, the federal courts do not have to interpret the rules in precisely the same way as the state court. Kentucky’s federal courts evidently have permitted waivers of ineffective assistance of counsel claims, and implicitly the federal courts perceive no conflict of interest or other impropriety when prosecutors request these waivers and defense lawyers advise their clients about them. If in fact the conduct is considered permissible by the federal courts under their interpretation of the professional conduct rules, then lawyers who negotiate for these waivers in federal criminal cases are complying with the rules of the applicable jurisdiction.
The McDade Amendment adds a wrinkle. This is a federal law requiring federal prosecutors to comply with the professional conduct rules of the states in which they appear. Arguably, federal prosecutors have to comply with the state rules as interpreted at the state level. It’s not clear that the McDade Amendment means that, but even assuming it does, that’s not a problem here. The Kentucky bar has said that under Rule 8.4(a), a prosecutor cannot extend a plea offer that would be unethical for defense counsel to advise the defendant about. But this has no significance for federal prosecutors unless the Kentucky federal courts first agree that defense lawyers can’t give advice about waiving the right to bring an ineffective assistance of counsel claim. If the federal courts decide that these waiver provisions create no impediment for criminal defense lawyers, then Rule 8.4(a) would not preclude federal prosecutors from including these provisions in their plea offers.
Now perhaps this is all just academic. If federal prosecutors lack standing to seek review of the bar’s opinion, perhaps they will find a sympathetic state prosecutor to seek review. But that may not be ideal from federal prosecutors’ perspective, since it is not clear that state prosecutors actually extract waivers of ineffective assistance claims or want to be able to do so.
One other question of note: Federal prosecutors sometimes argue on federal preemption or separation-of-powers grounds that state ethics rules do not apply to them. By seeking judicial review of a state bar ethics opinion, on the premise that federal prosecutors are “aggrieved or affected,” is the Department of Justice implicitly conceding that state ethics rules, as interpreted by state authorities, apply to them? Or can they have it both ways?
Director, Louis Stein Center for Law and Ethics
Fordham University School of Law
Dawn Porter’s documentary Gideon’s Army will soon appear on HBO. It was featured last night by John Oliver on the Daily Show. The film tells the story of the daily heroism of public defenders.
The New Jersey Law Journal Editorial Board has commended the recent decision by federal District Judge Dolly M. Gee, in an ACLU-sponsored class action, to require assistance to the mentally incompetent who face deportation. That assistance may be by lawyers, law students, or otherwise qualified representatives from a social service organization. It is a step forward in the civil Gideon movement. – GWC
Some good class discussion questions on this one arising from the DOJ IG’s report on former U.S. Attorney Dennis Burke’s leaks to the NY Times and Fox News in the `Fast and Furious’matter.
The DOJ maintains its own `private’ disciplinary office (OPR) which in practices preempts action by the state licensing authorities who are the source of the law license of every lawyer in the country. [The OPR process has been criticised in the Yale Law Journal online by Professor Green for excessive secrecy.]
The OIG’s report here asks OPR to investigate Burke’s conduct and to determine if the former prosecutor violated the rules of professional conduct of “any state bar of which he is a member”.
Did he? RPC 3.3 – Candor to the tribunal comes to mind – but the OIG is not a tribunal. The former “appearance of impropriety standard” served as a catch-all, but it is gone. How about RPC 3.8 special responsibilities of a prosecutor?
The Oyez Project has completed its audio archive of Supreme Court arguments going back to 1955.
But the accounts so far have not mentioned the groundbreaking role of Peter Irons, the crusading lawyer/historian whose May It Please the Court presented the audio of twenty two landmark cases. He continues his landmark work in current efforts to get the U.s. Supreme Court to repudiate is decision in Korematsu v. U.S.
Times business columnist Gretchen Morgenson identifies cases like that against Sun Trust as opportunities for newly confirmed S.E.C. chair Mary Jo White. Skepticism is in order. After stepping down as U.S. Attorney she and her husband enriched themselves representing those she is now charged with overseeing, and where appropriate, prosecuting. It is not easy to bite the hand that so recently well-fed you.
Times Reporter Peter Lattman summarized recently just how complex is the web of interests which White and her husband John (a Cravath partner and former S.E.C. offical) must unwind or keep at arm’s length. It leads ne to ask is it even possible? D they know too much and own too much to ever be reliably independent protectors of the public interest?
Abbe Smith (who has a forthcoming book of her own – How Can You Represent Those People? – with Monroe Freedman) reviews two new books that “reveal the deep gap between cherished American ideals and the harsh reality” in the Sunday NYT Book Review. One of these books is Kids for Cash; Two Judges, Thousands of Children, and a $2.8 Million Kickback Scheme by William Ecenbarger. The title says it all and, as Smith explains, “in a festival of injustice, prosecutors, public defenders, teachers and court employees saw it all and did nothing.” Though the judges at the head of the scheme are now in prison, one wonders whether we will ever see meaningful reform to prevent this sort of thing or is it just another example of Amy Bach’s Ordinary Injustice. I first learned the details of the scheme a few years ago when a student wrote a paper for my First Amendment and Lawyers’ Speech seminar, which she later turned into an article: When Canaries Won’t Sing: The Failure of the Attorney Self-Reporting System in the ‘Cash For Kids’ Scheme, by Sarah Primrose. Primrose argues for reform to the reporting of attorney misconduct.
(Cross posted at the Legal Ethics Forum)
An interesting article by Jan Jacobowitz. Available here.