SBM Blog

Keeping Your Clients' Secrets Secret

The recent Virginia Supreme Court attorney discipline case Hunter v. Virginia State Bar about what lawyers can and can't say about their clients continues to draw fire. The Virginia State Bar had disciplined an attorney for, among other actions, revealing embarrassing information about his former clients in his blog. The Virginia Supreme Court held that the attorney can't be disciplined because the information revealed in the blog was already public.  U-C Hastings Law professor and ethics expert Richard Zitrin says that the state bar got it right and the justices misunderstood its own confidentiality rule by granting a lawyer unlimited first amendment freedom of speech to a former client's detriment:

The Virginia State Bar was right in disciplining Hunter for violating his duty of confidentiality to his clients, even though he disclosed the information only after the cases were over. The duty is to protect not just direct communications but "secrets." Those "secrets" include anything embarrassing or likely to be detrimental to the client. The fact that the information is available to the public doesn't mean it is known by the public. And it is there that an attorney's duty lies and continues, both before and after the end of the case. When the high court overturned the bar, it misapplied its own rule.

The point about information available to the public but not necessarily known by the public is one that grows in importance in an age of information overload, and is one that our legal system clearly hasn't fully digested yet.

HT: Legal Ethics Forum

Justice Alito's Son's Clerkship Sparks Ethics Discussion

If you are a Supreme Court justice and your child is clerking for a federal appellate judge, will you be inclined to favor the opinions of that judge, especially ones your child has worked on? The hiring of Justice Alito's son Philip, a Duke Law 3L, by D.C. Circuit judge Brett Kavanaugh has triggered the question. According to a story in the National Law Journal (sub. req.), the justices have a policy concerning recusal in cases involving their children's law firms, but do not have a policy concerning clerkships. The two ethics gurus consulted by NLJ, Stephen Gillers and Amanda Frost, both say that recusal is not required.  Since his appointment to the D.C. circuit in 2006 Judge Kavanaugh, a former clerk to Justice Kennedy, has acquired a reputation as a "feeder judge" to U.S. Supreme Court clerkships. But the NLJ story points out that a path to a Supreme Court clerkship is foreclosed to the young Alito by a federal anti-nepotism law.

Breaking: Former MSC Justice Diane Hathaway Sentenced to One Year in Prison

Former Michigan Supreme Court Justice Diane Hathaway has been sentenced to one year, one day in prison for bank fraud. She must also pay $90,000 in restitution and serve two years of probation.

"Your honor, I stand before you a broken person," the Detroit News quotes Hathaway as saying. "I am ashamed, embarrassed, humiliated and disgraced, and I have no one to blame but myself. I take full responsibility for my acts and am truly sorry for the choices I made."

Read more in the Detroit News and the Detroit Free Press.

Posted by Samantha Meinke

Hypomania: The Official Word

Readers following Wayne County Circuit Judge Wade McCree's Judicial Tenure Commission hearing might be wondering about hypomania, the condition that Judge McCree's lawyer reportedly offered as an explanation for some of the conduct at issue in the hearing. The British Journal of Psychiatry is skeptical that it can be defined, as explained in Hypomania: what's in a Name?:

‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘It means just what I choose it to mean — neither more nor less.’ (Lewis Carroll, Through the Looking Glass and what Alice found there, 1871)

The use of the term hypomania in this and other countries impressively follows the Humpty Dumpty principle. Indeed, in the UK many, perhaps a majority of, inpatients are diagnosed to be ‘hypomanic’, perhaps partly out of a sense of politeness. The term manic does, after all, have a pejorative flavour to some ears (paceJamison, 1996). The original Greek sense of the word is that hypomania is hierarchically below or beneath mania. It fills a gap between the full syndrome and more everyday states of elation. The issue is simply where to draw the line with mania, on the one hand, and with normality, on the other. If we actually use them, operationalised diagnostic criteria should permit us to do this reliably.

The 10th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD-10), the World Health Organization medical classification list, says:

The terms "mania" and "severe depression" are used in this classification to denote the opposite ends of the affective spectrum; "hypomania" is used to denote an intermediate state without delusions, hallucinations, or complete disruption of normal activities, which is often (but not exclusively) seen as patients develop or recover from mania. ... here is a persistent mild elevation of mood (for at least several days on end), increased energy and activity, and usually marked feelings of well-being and both physical and mental efficiency. Increased sociability, talkativeness, overfamiliarity, increased sexual energy, and a decreased need for sleep are often present but not to the extent that they lead to severe disruption of work or result in social rejection. Irritability, conceit, and boorish behaviour may take the place of the more usual euphoric sociability. 

The controversial new DSM-5 officially coronated this week apparently doesn't offer much more assistance. It basically sticks to the script of DSM-4, except that it refines and adds more emphasis to symptoms of heightened activity or energy. DSM-4 defined a hypomanic episode as:

"A Case Every Law Firm And Corporate General Counsel Should Be Watching"

ABA Journal reports on a Georgia case that addresses one of the most "perplexing" ethical issues involving the increasing use of in-house counsel to advise law firms about ethics duties and regulatory requirements: whether communications between a firm's lawyers and its in-house counsel are protected by attorney-client privilege and work product doctrine in disputes between the firm and a client.  In the case, a law firm contacted its in-house counsel immediately following a contentious conference call with  that led it to conclude that the client might be contemplating a malpractice suit against the firm. There is a dispute about whether the law firm advised the client at that point that it needed new counsel. The client did in fact sue the firm six months later, but denies that it was contemplating a lawsuit at the time the firm consulted its in-house counsel. The firm is seeking to protect its communications with the in-house counsel from discovery, including a 33-page memo describing the conference call that lawyers at the firm wrote the day after it occurred. 

The case is St. Simons Waterfront v. Hunter, Maclean, Exley & Dunn, now before the Georgia Supreme Court.

The ABA has not taken a position on the firm's arguments, but says in an amicus brief (PDF) that as a general matter it urges that lawyers’ communications when seeking legal advice from their in-house counsel should be broadly protected because of the benefits to their clients and the legal system, and to lawyers and their firms.

Randy Johnston, a malpractice lawyer, has a bright line approach. He told ABA Journal:

Law firms should have the right to internal defense and to work product, but the law firm must immediately inform the client when there is a conflict. Failure to tell the client eviscerates the privilege. Period.

Campaign Finance Disclosure, Corruption, State Capitols, And Geography

In a forum tonight at Cooley Law School a panel consisting of former Senate Majority Leader Ken Sikkema, Michigan Campaign Finance Network Executive Director Rich Robinson, and interim Wayne State Dean Jocelyn Benson addressed the topic of "Money in Politics."  Benson made a passionate plea for a state constitutional amendment to require immediate and full disclosure of the source of all campaign electioneering expenditures. Robinson described the outsized role that "dark money" has come to play in Michigan races, with special emphasis on judicial campaign funding. (Note: The State Bar of Michigan supports full disclosure of electioneering expenditures in judicial campaigns.) Ken Sikkema offered the practical and skeptical perspective of a veteran politician, especially lamenting the way in which third-party expenditures have weakened the role of candidate committees.

What all the panelists agreed upon was the need for full campaign finance disclosure.

There was no consensus about the extent to which money in Michigan politics has been corrupting. Ken Sikkema in particular defended Michigan legislative politics as relatively scandal-free, especially as compared with, say, New York. Coincidentally, today's Washington Post Wonkblog says that studies show a correlation between a state's corruption and how remote its state capitol is, specifically “isolated capital cities are robustly associated with greater levels of corruption.”

Photograph: Dave Parker (2006), interior of Michigan Capitol Building

How Not To Respond To A Letter From Your Law School Suggesting You Might Be Litigious

Sue. Here's the apparent trigger language from a letter from Wake Forest Law School Executive Associate Dean for Academic Affairs to law student Dan Skinner:

From my experience with you on this issue, if people disagree with you, you appear to assume that those persons are acting in bad faith and you accuse them of fraud and deceit.

HT: Above The Law

 

Why Good People (Including Lawyers) Sometimes Make Bad Ethical Mistakes

An eternal question: why do people who not only should know better but who have exemplary professional records and to all appearances are morally upstanding in other aspects of their lives sometimes commit appalling ethical breaches?  A couple of recurring answers are depression and substance abuse, problems for which the State Bar provides help -- the Lawyers and Judges Assistance Program.  But that explanation doesn't hold for all ethical lapses.

Behavioral Legal Ethics, a paper to be published in the Arizona State Law Journal, applies insights from psychology to the discussion of legal ethics lapses, and points to this observation from John M. Darley, The Cognitive and Social Psychology of Contagious Organizational Corruption, 70 BROOK. L. REV. 1177, 1180 (2005):

In our conventional way of thinking about ourselves, we are confident that we would know in advance that to do some set of actions would be morally wrong, and that this realization, occurring prior to the actions, would prevent us from taking them. These comforting thoughts turn out to be not true.

Key points: we don't think we're capable of acting unethically, we don't see the ethical dimensions of a challenge when we're grappling with it, we fail to understand how emotions will drive our conduct, we make small ethical lapses that lead to bigger ones, and we use post-hoc moral reasoning to justify questionable decisions. And as if that's not scary enough, the paper says that studies have found that you're likelier to lie if you're under time pressure and to make unethical decisions when you're suffering from a lack of sleep.

Legal Ethics And The IRS Auditing Scandal

John Steele at Legal Ethics Forum spots a legal ethics angle to the news that the IRS flagged groups with the words "tea party" or "patriot" in their name for extra scrutiny:

For the most part, the news that the IRS audited groups based upon their politics isn't a legal ethics story. But the AP is now reporting that a "chief counsel" within the IRS knew about the problem back in 2011. Paul Caron's Tax Prof Blog has a round-up. We'll see how that plays out. Presumably that counsel was governed by the rules about representing organizations and by the role of government lawyer. Given that the IRS now concedes its behavior was inappropriate, one would expect that any lawyer brought into the loop would have obtained assurance that the behavior had ceased or would "run it up the org chart" to higher people in the organization. I don't want to speculate too much but if a lawyer knew back in 2011, it will be interesting to see what he/she did with the info.

A federal watchdog report is scheduled to be released this week.

On "Shaming" Of A Convicted Supreme Court Justice

Former Pennsylvania Supreme Court justice Joan Orie Melvin was sentenced this week to three years house arrest followed by two years probation after her conviction on six criminal counts, including three felonies, for using her judicial staff on the Superior Court to work on her Supreme Court election campaigns. While there's been some criticism of the lack of jail time, It's the additional part of the sentence that is drawing the most attention:  Orie Melvin was ordered to go into chambers at the end of the sentencing hearing, be handcuffed by a sheriff's deputy, and photographed, and to send copies of the photograph to 500 of the state's judges with a note of apology.  She must also send handwritten apologies to the state workers she ordered to perform illegal work.

The Pittsburgh Post-Gazette, which says that the sentence was meant to humiliate the former justice asked legal experts about the sentence, talked to experts on shaming and constitutional scholars about the sentence's constitutionality for this story. Bottom line: yes, the sentence is humiliating, and no, it may not pass constitutional muster.