A new 10-minute video is available from the ABA exploring implicit bias and criminal defense.
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.