CLE Blawg

 

Protection under European Union law for lawyer-client communications should not be extended to cover communications between an entity and its in-house counsel, argued the court's advocate general (Akzo Nobel Chemicals Ltd. v. European Comm'n, Euro. Ct. Justice, Case C-550/07 P, 4/29/10).  Advocate General Juliane Kokott argued that an in-house lawyer cannot be considered sufficiently independent of the employer-client so as to meet the requirements for invoking the privilege.  The court relied on an earlier ruling, which held that the protection accorded to the legal professional privilege under EU law applies only to the extent that the lawyer is independent-that is, not bound to the client by an employment relationship.

 

What eventual impact could this have on the practice of law on this side of the Atlantic?  With the growth of international practices and the implications of cross-border practice - especially considering international corporations - will the EU or US position prevail over time?  Could this lessen the reliance companies can put on the privilege or confidential matters with its in-house counsel?

 

Could this be a boon for outside corporate counsel?

 

                      

                      Juliane Kokott

 

Prison litigation statutes are often ineffective in helping prisoners with legitimate claims, reports Wendy N. Davis in "Unlocking the Lawsuit" (ABA Journal, June 2010, p. 14).  Example: One minor while a detainee was beaten with a sock-covered padlock and raped.  In spite of his mother's complaints and eventual lawsuit, the suit was dismissed, with the court observing, "Mrs. Minix made heroic efforts to protect her son from what she understood was occurring [but] her efforts cannot be said to have satisfied Mr. Zick's obligation under the Prison Litigation Reform Act to exhaust available administrative remedies."  (Minix v. Pazera, N.D. Ind., 2005). 

 

The U.S. Supreme Court ruled in Woodford v. Ngo (2006) that prisoners must not only file grievances before suing but also bring grievances within the time limits established by prison authorities.  In Amador v. Andrews an inmate filed a grievance that she was sexually assaulted by a guard, but the judge ruled that the inmate had not exhausted her remedies because she didn't also allege exactly how the prison management had improperly supervised or trained the guards.  This leaves inmates in the untenable position of not knowing what role official policies and procedures may have played, a necessity before suit can be filed. No one wants a return to a plethora of frivolous lawsuits, e.g., an inmate complaining because he was served chunky instead of creamy peanut butter.  What is needed is a way for legitimate prisoner complaints to proceed, unencumbered with restrictions that even the best among jailhouse lawyers cannot decipher.

 

So, where do we start?  

 

Professionals - especially lawyers - often talk wistfully of a perfect work-life balance.  It's as if some actually believe that perfection can be achieved in balancing work and personal interests.  
 
Psychotherapist and Coach James Dolan writes in The Texas Lawyer (May, 2010) "Lawyers can feel paralyzed by the demands of their personal and professional lives. It is difficult to be an attentive spouse while preparing for a high-pressure trial in another city. It is challenging to be a supportive spouse when feeling neglected and resentful. It is not surprising that many find themselves asking within a few years, "Do I live to work, or do I work to live?"

 

This is paraphrasing Solomon's query, "Does man live to eat, or eat to live?" There is a difference. The problem is that sucessful lawyers usually put in an inordinate number of hours at work each week, leaving but limited time to pursue other areas of interest.

 

But at the end of the day, perfection isn't to be found. Rather than searching for perfection in work-life balance, I believe we need to rate ourselves using a 1 to 10 continuum on four scales:

 

Physiological ____

Sociological ____

Psychological ____

Spiritual/Ethical ____

 

Using 1 as abject failure and 10 as perfection, how balanced is your life?

 

Prosecutors occupy one of the most powerful positions in society.  They determine the fate of individuals in bringing charges and prosecuting cases.  Here we examine professionalism in the justice system as it relates to the role of prosecutors.  Special emphasis is devoted to ethical dangers of a prosecutor's urge to win.  Current prosecutorial conduct is examined with an eye on the temptation to test the outer limits of ethical deportment.

 

Your thoughts on this course?

 

I contend that lawyer misconduct makes news because it is the exception, not the rule.  Most attorneys strive to do the right thing, evidenced by labor and employment partner Matthew Deffebach, a 39-year-old member of Haynes & Boone in Houston.  Deffebach agreed to donate a kidney to the son of a longtime staff member at the law firm.  He was one of several lawyers from the firm who volunteered for testing to see if one would be a match for the staffer's son whose kidneys were damaged by Berger's disease.  When interviewed, Deffebach told Tex Parte he was moved to offer his kidney after learning the staffer's son was the father of a 6-year-old boy.

 

Matthew Deffebach and his wife have three young daughters, and he says he couldn't stand the idea of the boy growing up without a father.

 

We read of professional misconduct so often that even professionals are prone to look askance at lawyer deportment.  Do additional good news stories concerning lawyer actions come to mind?  What do you have to share as a morale booster for practitioners?

 

In a column published in The New York Times on May 10, 2010, David Brooks questions the process of Elena Kagan's nomination as the administration's choice for the open seat on the Supreme Court.  Brooks writes that she is smart, deft and friendly.  A superb teacher, she can process many points of view and mediate between different factions.  At the same time, she is apparently prudent, deliberate and cautious.

"She was one of the most strategic people I've ever met, and that's true across lots of aspects of her life," observed John Palfrey, a Harvard law professor.  "She is very effective at playing her cards in every setting I've seen."

Tom Goldstein, the publisher of the highly influential SCOTUSblog, has described Kagan as "extraordinarily - almost artistically - careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."

Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook). There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly.

And she has no judicial experience.  Some would argue this is a plus.  Others see it as a minus.

Does Kagan bring more balance to the court and is this in the best interest of the judicial system or would the nation be better served by one who has served in past judicial posts, thereby bringing more judicial experience to the court?

 

National Law Journal reports that Steven Belcher, a temporary lawyer at a St. Louis law firm who was licensed in three states, was helping defend a wrongful death case.  He decided to e-mail a picture of the deceased to a friend.  The body of the overweight, naked man was pictured lying on an emergency room table. Belcher added his own commentary.

 

Legal ethics seminars frequently address issues concerning avoiding online ethical mistakes.  An ABA Commission on Ethics 20/20 will soon consider if existing ethics rules adequately address online transgressions.

 

"It's not as if lawyers never misbehaved before," the story says. "But now they're making the same old mistakes-soliciting for sex, slamming judges, talking trash about clients-online, leaving a digital trail for bar counsel to follow."

 

One example includes a Chicago immigration lawyer who posted an ad on Craigslist seeking a secretary and asking for measurements and photos.  Then in a follow-up e-mail, the lawyer said one of the job requirements would be "sexual interaction with me and my partner."  Disciplinary action is reportedly pending.

 

On a scale of 1 to 10, "How egregious is the Chicago attorney's ad?"  Also, what sanction would you see as most appropriate if you were serving on a disciplinary panel considering this matter?

 

Is there a correlation between the law school one attended and the salary graduates may expect as new hires at law firms?  The U.S. News & World Report annual ranking of law schools insinuates this may be the case (U.S. News & World Report, May 10, 2010).  Though first year associates at small firms can expect to earn between $49,750 and $73,000 a year, not everyone is expected to find work as an attorney.  "Jobs are no longer a sure thing, and loans are harder to pay back," notes the article.  "Although the job market is improving, experts caution that law school hopefuls need to carefully weigh the costs and benefits of a law degree and, whether aiming for BigLaw or Legal Aid, estimate their personal return on investment."

 

And the bad news is that tuition is rising.  ABA statistics report average tuition at private law schools was $34,298 in 2008, an increase of 6 percent, and $16,836 at state schools, an increase of 9 percent.  But at Yale Law School, in first place on the rankings list, tuition is a hefty $48,340 a year. In fact the lowest tuition for a top 10 law school is found at the University of California at Berkeley, which charges in-state residents $35,907 annually.
David Stern, CEO of Equal Justice Works, told the magazine that students hear of law graduates making $160,000-the going salary for associates at big law firms before the recession hit-and wrongly assume they will be making that kind of money.  This is comparable to hitting the lottery, according to Stern, with the odds increasingly weighted against such a handsome starting salary.

 

1. "What would you advise a college student contemplating taking the LSATs and enrolling in a law school?"
2.  "Is it worth it?"
3.  "In your own case, would you do it again?"

 

 

The Iowa Supreme Court declared that a lawyer's unilateral disclosure of information about a client acquired during the attorney-client relationship is improper even if the information is in the public domain (Iowa Supreme Court Attorney Disciplinary Bd. v. Marzen, Iowa, No. 08-1546, 3/19/10).  The lawyer had been the subject of a disciplinary complaint alleging that he had engaged in sexual relations with a client.  He was found to have violated the rule on lawyer-client confidentiality in telling the media that the client had previously accused her probation officer of sexual misconduct.  The lawyer had earlier been convicted of engaging in sexual relations with the client while representing her.  In resolving the testimony surrounding the issue, the court weighed the credibility and motivations of the two, finding the lawyer's denials less plausible than the client's account.  "Jane Doe" filed a disciplinary complaint against attorney Jesse M. Marzen, claiming that he engaged in sexual relations with her after representing her in a mental health commitment hearing, and that he had sex with her on four other occasions while he was representing her on various matters.  A judge also filed a complaint against Marzen after hearing testimony from Doe, during a hearing on child custody, regarding a sexual relationship with Marzen.  Marzen was a candidate for county attorney when the allegations, which were highly publicized, surfaced.  When media sources inquired, Marzen spoke publicly about the disciplinary allegations, telling reporters that Doe ended his representation when she could not pay her bill.  He further said Doe "stated that she had been in a situation with her probation officer. I didn't find out until later that it was sexual misconduct."  Marzen ultimately won the election but still had to face  disciplinary complaints.  After an evidentiary hearing, the grievance commission found that Marzen had violated disciplinary rules by disclosing client confidences but that the charge of engaging in a sexual relationship with a client had not been proven.  Marzen was found to have violated Rule 1.6 in sharing these confidential conversations with the media, though it was a matter of public record that Doe had previously sued her probation officer, accusing him of sexual misconduct, and obtained a $5,000 settlement.  In the disciplinary proceeding, Marzen contended that because that information was a matter of public record, his comment to the media about Doe and the probation officer was not a violation of Rule 1.6.  In support of its finding, the court cited similar rulings from Kansas, Montana and New Jersey. The court also observed that Iowa's professional conduct rules forbid an attorney from profiting from information obtained through client confidences, without any explicit exception for information that is publicly available.  The omission of such an exception is intended to ensure "free and unrestrained communication without fear of betrayal," the court explained.  Marzen was found to have engaged in sexual relations with Doe while he represented her, in violation of Rule 1.8(j).  Though the court found as an aggravating factor that Marzen had taken advantage of an "extremely vulnerable" client, it concluded that the proof did not establish a sex-for-fees arrangement, which would have enhanced the seriousness of his misconduct.  In suspending Marzen from the practice of law for an indefinite period and at least for a minimum of six months, the court did note that Doe was a particularly vulnerable client.  One dissenting justice would have imposed but a reprimand.

 

There are a plethora of cases that have been addressed by judicial decisions throughout the United States referencing public policy. Cases discussed address a number of significant areas of the law that are instructive regarding the application and development of public policy. 

Your thoughts on this course?