Any discussion of Deborah Rhode’s work and impact inevitably is a flood of superlatives. We are fortunate that Clay Risen of the New York Times took the time to tell the story of a woman who was a powerful debater, teacher, writer, and thinker. A high school classmate of Merrick Garland, the Biden-Harris administration will unfortunately be unable to turn to her for the passion and powerful intellect and integrity she brought to her work in legal ethics. The field was little heeded until the Watergate debacle put prominent lawyers like White House counsel John Dean in the dock, and Attorney General John Mitchell in jail.
By Clay Risen
In light of recent events, this announcement seems particularly timely:
FASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for its 2019 Law program.
FASPE Law is a fully-funded, two-week fellowship program in professional ethics and ethical leadership that begins by examining the actions and choices of German lawyers in enabling Nazi policies. It then draws on this historical example to help Law Fellows both grasp their role as influencers in their field and in their communities as well as identify and confront the ethical issues currently facing lawyers and the legal profession. The program takes place in Germany and Poland at the sites of Nazi actions, allowing Fellows to benefit from the power of the place and immersive, contextual learning.
Program Dates: Saturday, May 25 – Friday, June 7, 2019.
Fully-funded: All program costs are covered, including travel, lodging, and food.
Interdisciplinary: FASPE Law Fellows travel with Fellows in the FASPE Business and Journalism programs.
Itinerary: Fellows will travel to Berlin, Krakow, and Oswiecim (the location of the former Nazi concentration camp of Auschwitz).
Eligibility: Applicants must be currently enrolled in a JD or LLM (or equivalent) program OR have received such a degree between May 2017 and January 2019.
FASPE programs are non-denominational. Candidates of all nationalities, religions, and backgrounds are encouraged to apply. ASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for its 2019 Law program.
Links to additional information appear below:
- A one-page informational flyer available here
- A social media image is available here
- A sample syllabus from the 2018 program is available here
- Our application page is accessible here
Those of you teaching Chapter 6—The Lawyer’s Duties to the Legal System, the Profession, and Nonclients—might be interested in an article of mine just published by the Fordham Law Review for its Lawyering in the Regulatory State Symposium. In the paper, using the GM ignition switch scandal as a point of departure, I critique the common assertion that our legal system is best served if the corporate in-house lawyer conducts his/her relationships with senior corporate managers according to the “lawyer as friend” model. I argue that there are numerous problems with the model, not the least of which is the invariably (and perhaps intentionally) vague way in which the model is invoked. Those who invoke the “lawyer as friend” model repeatedly assert that the senior corporate manager needs to be able to repose “trust and confidence” in the inhouse lawyer. Unfortunately, they never explain: trust and confidence in what?
As a matter of professional responsibility and fiduciary obligation, the lawyer cannot reassure the manager that his communication will remain confidential or that the manager will be shielded from adverse consequences. If the corporate senior manager is engaged in material wrongdoing that may harm the corporate entity, that manager will usually not be entitled to those assurances. As William Simon has explained, the authority to invoke or waive the organization’s confidentiality rights usually belongs to the organizational agents different from those who made the confidential communications. Because the lawyer may be required to testify against the manager in a court of law, it would be entirely inappropriate for the lawyer to reassure her colleague of her continuing loyalty or confidentiality. The lawyer’s duty of confidentiality will not block disclosure within the organization, and it will not prevent the organization from divulging information outside of the corporation, no matter how harmful internal or external disclosure is to the manager. Indeed, the only thing that the lawyer can properly promise the manager is that she will listen carefully and not rush to judgment, which is the behavior that anyone would reasonably expect of a competent professional (irrespective of any preexisting friendship). To suggest that lawyers should invite the manager’s trust and confidence and then—if the lawyer encounters evidence of material misconduct—turn around and report that manager to higher-ups basically advocates a bait and switch model. This “bait and switch” does not sound like friendship, which is precisely why the “lawyer as friend” analogy should be abandoned.
To be sure, in the best possible world, the senior corporate manager backs down from his illicit plan. This good result may be reached through some form of moral dialogue that legal scholars are right to recommend. What many folks ignore, however, is the sobering reality that persuasion does not always work. Not all lawyers will be skillful in the art of moral suasion, and—frankly—most law schools do not train students in moral suasion. Also, sophisticated senior managers, who find themselves in desperate enough situations to be considering wrongdoing in the first place, may not be receptive to the lawyer’s (perhaps feeble) attempts at moral suasion.
Perhaps those invoking the “lawyer as friend” model are merely saying lawyers should be “friendly”? Unfortunately, that commits the fallacy of confusing “friend” with “friendliness.”
If you’d like to read the whole article, it can be downloaded from SSRN here:
The entire issue of the Fordham Law Review Lawyering in the Regulatory State Symposium can be found here.
The April 2016 issue of Corporate Counsel Magazine (subscription required) features an article by Ben W. Heineman, Jr., who served as GE’s senior vice president-general counsel from 1987 to 2003 and then senior vice president for law and public affairs from 2004 until his retirement at the end of 2005. Heineman is currently a senior fellow at Harvard’s schools of law and government. The article contains excerpts from Heineman’s much-anticipated forthcoming book, The Inside Counsel Revolution: Resolving the Partner-Guardian Tension (Ankerwycke, 2016).
In the book, Heineman makes the case for his ambitious vision of the modern general counsel: “a lawyer statesperson who is an outstanding technical expert, a wise counselor and an effective leader, and who has a major role [in] assisting the corporation [to] achieve the fundamental goal of global capitalism: the fusion of high performance with high integrity and sound risk management.” In carrying out this role, the general counsel must resolve “the most basic problem confronting inside lawyers: being partner to the board of directors, the CEO and business leaders but ultimately being guardian of the corporation.” Accordingly, the book provides some guidance on how to resolve the partner-guardian tension that is inherent in the role.
The book can be pre-ordered here.
Princeton’s Robert George – the conservative Catholic tribune – has enlisted other lawyers and scholars in a call for “constitutional resistance” to Obergefell v. Hodges, which declared that same sex couples dignity rights bar states from denying them the right to marry. He invokes Abraham Lincoln’s First Inaugural and its famous call to limit the impact of Dred Scott v. Sanford:
<"the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
George’s call to `resist’ the high court’s authority has been welcomed (with minor caveat) by conservatives like Kevin Walsh. On the other side of the spectrum Lyle Denniston has warned that this is a call to defy the law. But it seems to me that Howard Wasserman is right that George et al. are within the bounds of lawyerly advocacy.
The call for resistance is a provocative headline. But it is revealed as hyperbole when the statement is parsed. The “Call” seems to differ little rhetorically from that heard on the political left to amend the Constitution to reverse Citizens United. – gwc
We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.
Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.
We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is.
We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.
We call on all federal and state officeholders:
To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.
To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.
To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.
The Supreme Court of Ohio’s Board of Professional Conduct has issued advisory opinion 2015-1. The Board concludes that in its opinion “A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs. ”
In the opinion of the Board the oath of office to uphold the state and federal constitutions, and the Code of Judicial Conduct’s injunction to comply with the law (Jud. Cond 1.1) ) act fairly and impartially (Jud. Cond. R. 2.2), and act without “bias of prejudice (Jud. Con. 2.3) compel the conclusion that a judge may not refuse to perform same sex marriages while performing heterosexual marriages.
One conservative Catholic, Richmond law prof Kevin C. Walsh laments at Mirror of Justice blog that the opinion turns the judicial authority to perform marriages into a mandate. He further objects that the Ohio Board’s opinion “gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that “[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.”
The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges “apply the law without regard to whether the law is ‘popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'” Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges’ personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.”
Walsh’s lambastes would be well founded, in my view, if a judge were asked to bless a same sex union contrary to her belief that such conduct is sinful. But of course the Board said no such thing. At the root of Walsh and like-minded critics’ view is a confusion of the sacred and the secular. The performance of a marriage is a ministerial, not a Ministerial function. Judges like other public employees cannot pick and choose among favorites based on legally irrelevant criteria. If the issue were granting permits to march based on the religious or anti-religious message of the march Walsh, et al. would certainly agree that a judge cannot pick and choose. But marriage evokes a different set of emotions and Walsh loses sight of the basic point.- gwc
China’s Communist party last year made rule of law its overriding theme. They mean it. But they don’t mean it the way we mean it. They are talking about the regularization of procedures, of ways of doing things. They do not mean that lawyers and judges are free to contravene official policy. They mean good governance,not an independent bar and judiciary.
People who challenge the Communist Party’s monopoly on political power face arrest. So do those who would split Tibet or Xinjiang from China. But also vulnerable is anyone who rattles the cage as the Fordham-based Committee to Support Chinese Lawyers explains.
We American lawyers welcome the regularization and strengthening of the everyday operation of the Chinese legal system. We have fruitful exchanges and collaborations. Courts are improving. Law is developing. lawyers and law professors take law seriously. But advocacy that touches “sensitive” issues – a common Chinese euphemism – can run afoul of the authorities. That sort of repression we properly oppose. But as the ABA statement excerpted below demonstrates – there is a fear of jeopardizing working relationships. That is the chilling effect of the recent wave of arrests and detentions of dissident lawyers. – gwc
Statement of ABA President William C. Hubbard on Arrests of Lawyers in China
The ABA encourages the Chinese Government to permit lawyers to discharge their professional duty to assure achievement of the fair and just legal system that the Communist Party has promised to all its citizens. The ABA also urges the many foreign legal organizations, universities, NGOs and government agencies that have been cooperating with Chinese counterparts in advancing the rule of law to continue their collaboration, and encourages other foreign institutions that are objecting to the current treatment of lawyers in China to join in supporting those lawyers and cooperating with China.
A Womens Donor Network Study reported in the New York Times finds that “Sixty-six percent of states that elect prosecutors have no blacks in those offices, . . . 95 percent of the 2,437 elected state and local prosecutors across the country in 2014 were white, and 79 percent were white men.” At the same time, “white men make up 31 percent of the population of the United States.” This study is relevant to a number of topics in the course, including the responsibility of lawyers for ensuring that the legal system provides equal justice for all and the special duties of prosecutors.
The National Law Journal recently published a story about the possible application of the crime fraud exception to attorney client privilege in the deadly GM ignition-switch cases under the headline “What Did Counsel to GM Know? Plaintiffs allege that GM’s outside counsel, King & Spalding, encouraged GM to enter into confidential settlements to avoid revealing the ignition-switch defects. The plaintiffs allege that King & Spalding had a responsibility to tell federal regulators about the defect if GM did not. The underlying fact scenario of the case is a classic example of the interplay between attorney-client privilege and the exceptions to client confidentiality, and can serve as an example of the obligations of a lawyer or law firm employed by an organization under ABA Model Rule 1.13. One of the lawyer’s for the plaintiff’s claims that there is no evidence so far that King & Spalding advised GM to report the defect to the proper federal authorities, and that “[t]he only focus was settling cases and moving on.”
In January, the New York Times wrote a related story “Victims of GM Deadly Defect Fall Through the Legal Cracks” The article explains how damage caps in many states, combined with GM’s legal strategy to make suing it costly, prevented many injured and families of those injured and killed from obtaining lawyers willing to sue GM over the ignition-switches. Many injured persons and families of those who died found that when non-compensatory damages were capped at $300,000 to $400,000, GM was able to make suing it too costly for plaintiffs’ lawyers to take the cases. This was especially true when victims were young or elderly and had negligible economic damages. When GM did settle, often confidentiality agreements kept the dangerous ignition-switches secret. The story claims that at least 42 persons died in crashes linked to the faulty switches, and GM was able to keep the problem largely hidden for more than a decade. The New York Times story is useful to show how damage caps combined with certain defense strategies can have public safety consequences.
A new study of lawyers’ political contributions (h/t Taegan Goddard’s Political Wire) shows that almost 75% went to Democrats. These results are similar to those discussed in Chapter 8, pp.804-15, which raises the question of whether lawyers’ role conception influences their political identity.
By Noah Feldman
Who needs law school? For centuries, the answer in the English-speaking world was: no one. You prepared for the bar by serving as an apprentice or an intern alongside practicing lawyers. Sure, you had to read a lot of cases. At first, they probably made no sense. But over time, you learned by watching and doing to connect the decisions in the books with real cases and real clients.
Today there’s renewed talk of returning to a world where you could join the bar after extended internships rather than formal legal study. I’m a law professor, so you’d expect me to defend the current system.
Before I do, however, let me make a big admission: Law school isn’t really necessary for lawyers or their clients. Practicing lawyers could, if they had the time and inclination, train interns to become excellent practitioners who fulfilled their obligations to their clients more than adequately. In fact, at big law firms in big cities, and smaller firms everywhere, partners and senior associates still do spend a lot of time informally training junior associates. If they didn’t, the junior lawyers wouldn’t be very good.
Graduating from law school, even having learned everything the professors have to teach, doesn’t prepare you to practice at a high level. Lawyering is an art, not a science. And the only way to learn an art well is by doing it. Yet law school is absolutely essential — not for lawyers with clients, but for our society as a whole. The reason has everything to do with what makes law distinct as a social phenomenon.”
Several recent articles have called attention to the challenges that lawyers face in the midst of this stressful profession.
The Florida Bar News recently highlighted the problem of lawyer suicide in a provocative article by Scott Weinstein, Clinical Director for the Florida Lawyers Assistance Program.
The March 2015 ABA Journal also features an article by Stephanie Francis Ward on lawyers who self-medicate to address the stresses of the profession. This article includes an excellent directory of national referral services.
I discussed both of these articles in the context of the Chapter 6 duty to report misconduct materials, and the class quickly evolved into a lively discussion of the challenges confronting law students, and the role that drugs, alcohol and mental health play.
Please note the upcoming ABA Mental Health Day activities scheduled for March 27, 2105.
The time is now to have your law school participate in this important national initiative. This is an opportunity to highlight professionalism and the relationship to wellness, and distribute information information including your local lawyers assistance program.
OTHERWISE: The Best Lawyers Money Can Buy – NYTimes.com.
by George Conk
The most frequently appearing Supreme Court advocates come from a narrow circle. From the usual elite law schools come former law clerks – outstanding students recommended by prestigious professors and selected by Justices who graduated from Yale and Harvard. They join law firms that value that credential which is highly salable to their clients who angle to get their cases heard by the high court.
But is it really a case of buying the “best lawyers” as the Times argues? Or is the key to their success that these advocates for corporate clients are preaching to the choir?
Torture by the CIA is back in the news thanks to the Senate Intelligence Committee Report on the CIA Detention and Interrogation Program. The role of lawyers is a worthwhile topic for a term paper or more. Click through below for links to materials. – gwc
OTHERWISE: Torture – the lawyers' role.
Feinberg backs BP bid to overturn settlement.
Kenneth Feinberg, who worked for BP in the Gulf oil spill while claiming to be independent, is trading again on his reputation as a modern day Edward the Confessor. He has urged the Supreme Court to grant cert in BP’s attack on the deal it negotiated but now regrets in part.
His amicus brief declares “Amicus Kenneth R. Feinberg was selected by Executive Branch officials to help design, implement, and administer two successful alternatives to the conventional tort litigation system.” “Selected by Executive Branch officials’ is cagey. True for the 9/11 Fund, not for the BP spill. He was “selected” by BP and presented at a June 2010 White House press conference to spread pacifying oil on the troubled waters of public opinion as the Gulf region reeled from the still uncontained spill.
In an incidental irony BP is trying to remove Patrick Juneau as court-appointed settlement administrator. They claim not to have known Juneau had represented Louisiana in dealing with the Feinberg-administered “Gulf Coast Claims Facility”. Feinberg, of course, knew, so in my view his principals are chargeable with that knowledge. MDL judge Carl Barbier ruled that Feinberg was BP’s agent. – gwc
A reading in Chapter 8 uses the metaphor of the legal profession as a blue state discuss the way political philosophy has helped construct the evolving understandings of the lawyer’s role. A recent study of the Presidential campaign contributions in 2012 shows that the legal profession is indeed a very blue state. H/T Above The Law.