Sunday, January 4, 2015

Legal Ethics Forum: Top Ten Legal Ethics Stories of 2014

Legal Ethics Forum: Top Ten Legal Ethics Stories of 2014:
1. Waivers of Ineffective Assistance of Counsel Held Unethical; DOJ Changes its Policies. It has long been the practice of DOJ prosecutors to seek waivers of ineffective assistance of counsel claims during plea bargaining. Some states challenged that practice, asserting that such waivers present unwaivable conflicts of interest for defense counsel and that therefore prosecutors should not bargain for them. Following a ruling along those lines from the Supreme Court of Kentucky, the DOJ changed its policies. Coverage here and here. Tigran Eldred had these thoughts.
2. The “Unfinished Business” Doctrine May Be Finished. Two courts struck down the application of the “unfinished business” doctrine that had formerly permitted a bankrupt firm to capture some of the revenue that other firms earned while working on matters that had begun at the bankrupt firm. Coverage here and here.
3. In-house Lawyers at GM under Intense Scrutiny for their Role in Non-Recall. General Motors commissioned an investigation into its failure to issue a recall of defective cars and the report suggested that a large part of the problem was the inadequate conduct of the in-house lawyers. Coverage here.
4. District Attorneys in Ferguson and Garner Homicides under Scrutiny for their Roles and Conduct. When grand juries declined to indict the police who committed the homicides of Michael Brown and Eric Garner, intense debate erupted about whether the respective DA’s had a conflict of interest in investigating police in their own jurisdiction and whether the specific manner the DA’s handled the grand juries was appropriate. Coverage here,herehere, and here.
5. Indictments regarding Dewey Implosion. After the financial implosion of the Dewey firm, state prosecutors indicated several of the firm’s lawyers and a relatively junior employee who was headed to law school.  Coveragehere (the indictments), here, and here.
6. Bar Passage Rates Take Ominous Dip. We’ve been seeing lower credentials for incoming law students and now we’ve seen a significant drop in bar passage rates. Some law school deans and professors aren’t buying the explanation from the testers that the students were of lower quality, but now that there’s more evidence, we’re faced with the possibility that we will continue to see dropping bar exam passage rates for the next few years. (This story is big and I suspect will be the focus of lots of discussion for the next few years.) Story here. A professorlooks over the evidence and begins to suspect that maybe the students taking the bar aren't as strong as in years past.
7. Judicial Nominee Blocked because of Prior Representation of Controversial Client. Senior counsel to the U.S. Senate Judiciary Committee, Debo Adegbile, was nominated to a federal judgeship but ultimately withdrew his nomination because of opposition based upon his prior representation of convicted police-killer Mumia Abu-Jamal. Almost every year we see stories like this, but what makes this one interesting is that some Democrats opposed the nomination as well, perhaps at the urging of their police. Coverage here, here, and here.
8. Torture Report Reignites Discussion of the Role of Lawyers. The role of lawyers in the torture (or, if you prefer, enhanced interrogation techniques) scandal has made the Top Ten list several times. It makes the list once again because the release of the Senate Majority’s report exposed details of how the program was implemented and concealed. Coverage here and here.
9. Supreme Court of California Rejects the Move to an ABA-based Set of Rules (and Tosses 14 Years of Rules Revision Commission Work Product). In what was a stunner to lawyers in the state where nearly 1/8th of all US lawyers practice, the Supreme Court of California rejected the fruits of a massive, 14-year project to overhaul California’s ethics rules and make the structure and format consistent with the national approach. Coverage hereherehere, and here.
10. South Carolina Declares that Legal Zoom is Not UPL. Coverage here. The Supreme Court of South Carolina’s ruling that Legal Zoom is not engaged in the practice of law is a real sign of the times—a sign that our profession’s boundaries continue to become more porous.

Honorable Mention
(in no particular order)
Moonlight Fire Litigation. Following the “Moonlight Fire," both state and federal litigators sued Sierra Pacific for eight figure damages. Subsequently the behavior of the government lawyers was savagely criticized in state court proceedings and now we’re seeing serious allegations of misconduct by DOJ lawyers and Sierra Pacific’s lawyers in federal court litigation. Coverage here and here.
Admissions Decisions. Early in 2014, California enacted a law that permits Sergio Garcia, resident in California since early childhood but without legal authorization to be here, to be admitted to the State Bar of California. Then the Supreme Court of California denied admission to disgraced journalist Stephen Glass. Florida ruled that undocumented persons may not become members of their bar.
Intra-firm Privilege vis-à-vis Current ClientsCaliforniaand Oregon joined the growing list of states that permit law firms to have internal, privileged communications about current clients.
Patton Boggs Withdraws. The law firm of Patton Boggswithdrew from controversial environmental litigation and their clients objected to the withdrawal and to the public statements the firm made while withdrawing
Arizona’s Admission on Motion Rule Survives Constitutional Challenge. Story and link to opinion here.
Texas Initially Bans the Title “Chief Technology Officer” as Applied to Non-Lawyers at Law Firms. I believe that the bar was going to rethink that (flawed) decision.  Do any of our readers know how it turned out?
Biglaw and the Withdrawal under the Duty of Candor. Facebook founder Mark Zuckerberg sued DLA Piper, alleging that the firm’s prosecution of a civil lawsuit for Paul Ceglia was based upon forged documents. Akin Gumpwithdrew from a case following it’s discovery that its client had been lying.
“Preamble” Used by Queens DA to Suspects Rejected by Court. As noted in the New York Times, “A panel of New York State appellate judges overturned the convictions of three men on Wednesday after finding that their constitutional rights had been violated by a method of interviewing suspects, used only in Queens, before they are arraigned in court. “
Relationship between Private Parties and State Attorneys General under Scrutiny. The New York Times covered the story here and we covered the specific incident of the targeting of Google here. Richard Painter has a proposal to modify the ABA Model rules here.
California Appellate Court Rethinks Its Condemnation of Lawyer Who Advocated for Juvenile Client’s Expressed Interests. An appellate lawyer was slammed by the Court of Appeal after pursuing a legal position that the client chose. After lots of amici supported the lawyer, the courtreconsidered. It's a great case for teaching and for thinking about client identity and autonomy in that field.
Criminal Defense Attorney Refuses to Do Further Work without Being Paid; Survives Sanctions. Story here. It took a lot of nerve for the lawyer to put his foot down.
ABA Commission on the Future of Legal Services Published Its Issues Paper. The paper is here. The work of that Commision will be big news and could be pivotal to the profession.
Executive Director of State Bar of California Is Terminated, Sues for Wrongful Termination, and Is Under Investigation. We covered the story here and here.
SCOTUS Rules against Party that Wanted to Use Seized Funds to Pay Attorneys. Story here.
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