OTHERWISE: ABA comments tepidly on arrests of dissident Chinese lawyers.
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.”
via OTHERWISE: Why We Need Law Schools – Noah Feldman – Bloomberg View.
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?