Lawyers not Liars : A Modified Traditionalist approach to Teaching Legal Ethics

As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us to conduct ourselves in a manner befitting this grand calling. The problem, of course, is how does one go about teaching this beyond merely stating it as a lofty truism? Sophisticated law students will quickly be turned off by Pollyanna-toned lectures about some seemingly unachievable legal Utopia. As a result, I think that many legal ethics professors deploy innovative teaching techniques in an effort to place the subject matter in a context that can be taken seriously and perceived as real by students. For me, the most effective pedagogical approach for attaining these objectives has been to teach professional responsibility in a manner comparable to most mainstream substantive law school courses, with a few calculated deviations. I endeavor to convey the critical nuts and bolts of the subject (the rules and the law) to students by way of the familiar case method, combined with Socratic dialogue. Though this is anything but pioneering, I suspect that I am likely among a minority of legal ethics professors who make extensive use of this teaching style. Part I of this Article explains the reasons for my choice, certain aspects of my specific case method, and the perceived benefits that flow from this manner of instruction. While I fully believe that my traditional law school modus operandi is an efficient and effective way for me to communicate the substance of professional responsibility, the calculated deviations that I employ are what I consider most essential in enabling me to reach my students and memorably impress upon them the difficulties and virtues of being a lawyer. Part II reveals and elaborates upon the special nuances that I inject into the course as a change of pace and a complement to my rather straightforward study of ethics rules and cases. Lawyers and liars may sound alike, but it is my hope that no one who encounters my former students will ever confuse the two

Different Lyrics, Same Song: Watts, Ferguson, and the Stagnating Effect of the Politics of Law and Order

This Article critically examines the Watts riots and their aftermath in comparison to the Ferguson situation, and demonstrates how little progress America has made in a span of fifty years in the area of race relations. More importantly, the Article points to the politics of “law and order” as the primary culprit for this static social condition

May It Please the Camera,...I Mean the Court --An Intrajudicial Solution to an Extrajudicial Problem

This Article explores the depths of the ethical issues presented when lawyers zealously advocate on behalf of their clients to the media, as well as the negative public policy ramifications that such behavior generates. The latter effect most seriously signals the need for reform in this area. Part II of the Article provides insight into the principal source of the problem--the ineffectiveness of the existing regulatory devices. This section traces the evolution of the ethical rules that pertain to public commentary by lawyers from the early days of steadfast condemnation to the modern appraoch of cautious equivocation. It also considers court-imposed gag orders and highlights various inadequacies from which they suffer. Part III then examines the consequences of the present regulatory scheme by demonstrating how prevalent and problematic extrajudicial advocacy has become. It also reveals the widespread disdain with which such conduct is viewed and the destructive impact extrajudicial advocacy has on the image of the profession and the public\u27s perception of the justice system in general. In Part IV, I suggest that a logical solution would be to equate the court of public opinion with courts of law for purposes of professional regulation

A Tale of Prosecutorial Indiscretion: Ramsey Clark and the Selective Non-Prosecution of Stokely Carmichael

During the height of the Vietnam War and one of the most volatile periods of the civil rights movement, then-Attorney General Ramsey Clark controversially resisted intense political pressure to prosecute Black Power originator and antiwar activist Stokely Carmichael. Taken in isolation, this decision may seem courageous and praiseworthy, but when considered against the backdrop of Clark’s contemporaneous prosecution of an all-white group of similarly situated anti-draft leaders (the so-called Boston Five), his exercise of prosecutorial discretion becomes suspect. Specifically, the Boston Five were prosecuted in 1968 for conspiracy to aid and abet draft evasion, a charge for which the evidence against Carmichael seemed markedly stronger. This article critically examines the propriety of Clark’s decision to forego the prosecution of Carmichael, and concludes that it was most likely the product of an earnest and unwavering commitment to the civil rights movement, generally, and the legally oppressed, specifically. Though objectively improper when analyzed alongside the prosecution of the Boston Five, Clark’s chosen course, which I ascribe to the exercise of prosecutorial indiscretion, is virtually impossible to condemn given his worthy motives and the singularly complex sociopolitical milieu within which he had to operate

Criticizing Judges: A Lawyer\u27s Professional Responsibility

Lawyers, as officers of the court, are expected to act with deference and respect toward judges. Speaking sharply to or publicly criticizing members of the bench is frowned upon and not infrequently met with punitive responses. The judiciary, however, is not above reproach. Judges are fallible and may possess personal biases, tainting self-interest, or even prejudice. As such, at times, they must disqualify themselves if their ability to dispense justice fairly and impartially can reasonably be questioned. Indeed, the very nature of a judge’s role requires avoidance of even the “appearance of impropriety.” When judges fail to adhere to this standard, decisional accuracy is called into question, and the perception of fairness, so important to the judicial process, is diminished. Judges have broad discretion in deciding whether to disqualify themselves, and legal review of those decisions is limited, especially when made by a state’s highest court. In Georgia, for example, if a supreme court justice declines to recuse, there is no avenue for appellate review and mandamus relief is unavailable. Hence, a lawyer’s only meaningful recourse may be to publicly criticize the justice, making others aware of perceived wrongful conduct. Such a response, however, is substantially dissuaded in virtually every U.S. jurisdiction by Rule 8.2(a) of the Rules of Professional Conduct, which subjects lawyers to discipline for knowingly or recklessly making a false statement “concerning the qualifications or integrity of a judge.” While facially narrow, the rule is widely interpreted to cover far more criticism than the text would suggest. Only Georgia and the District of Columbia have declined to adopt Rule 8.2(a), choosing instead to accord greater latitude to the free-speech rights of lawyers. In this article, I argue that such an approach is more consistent with and supportive of lawyers’ ethical duties to their clients, the judicial system, and the public, and therefore should serve as the regulatory prototype

Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement of the Ethical Duty to Report

This article seeks to draw attention to certain ethical misconduct of litigators that is routinely accepted, tolerated, or ignored by the legal profession. Though there are other examples, the author focuses on conduct prohibited by Federal Rule of Civil Procedure 11. In particular, the author concentrates on that rule\u27s so-called “safe harbor” provision, which he argues serves to insulate, and possibly encourage, illegitimate advocacy in the form of the assertion and maintenance of frivolous claims, defenses, or other contentions ironically, the very conduct that the rule was ostensibly intended to deter. Regardless of the frequency of this sort of misbehavior, the offending attorney can, as a practical matter, escape both court sanctions and professional discipline. In an effort to end the toleration of those who habitually engage in such an illegitimate fashion, the author proposes an enhancement of the ethical duty to report through the creation and maintenance of “litigation misconduct databases” that will monitor this and other unethical litigation behavior, which presently is de facto unregulated

Foreword: Symposium--Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual

The topic of this Symposium -- Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual? -- is one that likely does not immediately resonate with many other than professional responsibility teachers and scholars. It is, however, a subject of critical importance to all existing and future members of the legal profession. This was true at the time that the Symposium was conducted in the spring of 2002, and it is even truer today in light of ever-growing concerns with regard to the ethical duties of lawyers, particularly those who represent corporate clients believed or known to be involved in unlawful activities. Indeed, current events suggest that a more appropriate question than that which we posed to our participants might have been: Can the revision of written ethical standards realistically reform or even meaningfully impact the legal profession

Reconsidering the Corporate Attorney-Client Privilege: A Response to the Compelled-Voluntary Waiver Paradox

The Department of Justice (“DOJ”) has adopted guidelines that seem to make waiver of the attorney-client privilege and work product protection a prerequisite for being deemed “cooperative,” a significant designation that carries with it the prospect for more favorable penal treatment. In addition, the United States Sentencing Commission underscored the potential importance of such waivers by approving an amendment to the Federal Sentencing Guidelines in 2004 that, under certain circumstances, makes privilege waiver a factor in assessing a corporation\u27s “culpability score,” which is used in determining the appropriate sentencing range. This perceived ever-present concern has caused many corporate executives and their counsel to question the continued efficacy of the attorney-client privilege and work product doctrine. In particular, they contend that the escalating pressure to waive these protections is eroding the desired atmosphere of mutual candor and trust that has traditionally been the hallmark of the attorney-client relationship, which, in turn, is adversely affecting counsel\u27s desire and ability to conduct the thorough factual investigations lauded by the Supreme Court in Upjohn Co. v. United States. Is compelled-voluntary waiver eviscerating the corporate attorney-client privilege and its concomitant benefits; or is the corporate attorney-client privilege already a fundamentally flawed doctrine that fails to promote the elemental touchstones of its forerunner, the individual attorney-client privilege? As this Article reveals, the answer to these questions is both “yes” and “no.” There is some truth to each position, but at the end of the day, accepting either does little to resolve the controversy surrounding the DOJ and other privilege waiver policies. Something more needs to be done to address adequately the problems created by the oxymoronic concept of compelled-voluntary waiver, as well as the inherent deficiencies of the corporate attorney-client privilege. After discussing some foundational background principles regarding the individual and corporate attorney-client privileges in Parts II and III, Part IV provides a detailed examination of the compelled-voluntary waiver issue and its alleged effects on the corporate attorney-client relationship. The Article continues in Part V with a discussion and assessment of the selective waiver doctrine, which appears to be the most popular remedial proposal at present. Part VI then presents support for refocusing the waiver debate on reconsideration of the privilege itself, and concludes with a proposal for the establishment of a uniform corporate attorney-client privilege, the scope of which should be modeled after the once popular “control group” test, albeit in a slightly revised form