John Steele at Legal Ethics Forum flags some questions on a lot of lawyers' and bloggers' minds -- what are a lawyer's ethical duties when the lines on compliance with the law are fuzzy? Several bloggers, including WSJ Law Blog and David Bernstein at Volokh Conspiracy, are writing that the President's announcement that people with health care policies that are not compliant with the Affordable Care Act can keep the policies for another year puts lawyers advising insurance companies and state regulators on the spot. Steele suggests that the facts might make for a good law exam question, reminds his readers of a "classic" article on the subject presenting a hypothetical about pollutant discharges that do not exceed the levels at which agencies are enforcing environmental laws but do exceed the letter of the law, and points to this model rule:
MR 1.2(d): "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."
Jack Goldsmith at Lawfare analyzes the White House counsel's rationale for intervention (e.g., "limiting regional instability and of enforcing the norm against using chemical weapons"), noting that his analysis is subject to change "if and when an official legal opinion emerges in public:"
[T[his rationale removes any effective limit on the “national interest” prong
of OLC’s [Office of Legal Counsel's] (expansive) precedents for presidential military
unilateralism. This rationale appears to entail that the President can
use “war at a distance” (drones, cyber, long-range missiles, maybe more)
essentially whenever he thinks it important, subject only to the
limitation that he cannot go further and put American troops in serious
harm’s way (boots on the ground and the like) without congressional
Goldsmith, now a Harvard Law prof, was Assistant Attorney General in the Office of Legal Counsel from 2003–2004, and
Special Counsel to the Department of Defense from 2002–2003.
National Law Journal has a short, gripping piece that offers insight into the U.S. asylum process and the value of pro bono. It describes the asylum application of a girl whose circumstances were similar to those of Malala Yousafzai, the Pakistani girl shot in the face by Taliban militants for her activism about educating girls in Pakistan.
Despite a huge boost in sales for The Cuckoo's Calling, Harry Potter author J.K. Rowling is none too happy with the disclosure that she, and not the pseudonymous Robert Galbraith, authored the well-reviewed mystery. The news that the wife of one of J.K. Rowling's lawyers was the source of the unauthorized disclosure is an embarrassment for the legal profession but it is also something more. A great law school hypothetical. Claim? Damages? Remedies?
Vaccination lies at a normally quiet but tricky intersection between science, public policy, and law. The leading anti-vaccine activist, British medical researcher Andrew Wakefield, sued the British Medical Journal last year after the BMJ retracted a 1998 paper Dr. Wakefield authored in the publication. The suit was dismissed last August.
In recent days, two news stories highlight ongoing controversy. Robert F. Kennedy, Jr., lawyer and environmentalist, is an adherent of the view that the U.S. government is covering up a connection between the preservative thimerosal found in many vaccines and autism. He wrote a piece in Salon to that effect which Salon has subsequently retracted. Last week Kennedy gave a keynote address at a conference on autism in which he is reported to have likened childhood autism to Nazi death camps and said about the leading proponents of vaccination, "Is it hyperbole to say they should be in jail? They should be in jail and the key should be thrown away."
If you know the dangers of measles or for that matter whooping cough or
mumps, and you still choose to put others at risk should you be exempt
from the consequences of that choice? I can choose to drink but if I
run you over it is my responsibility. I can choose not to shovel the
snow from my walk but if you fall I pay. Why should failing to
vaccinate your children or yourself be any different?
Whichever way you look, there's a legal issue in sight.