Talking in Public: A Cautionary Tale for Lawyers

Kenneth Vogel of The New York Times has this remarkable story that should serve as a cautionary tale for all attorneys who may feel tempted to speak about their cases and clients outside of the office. Vogel reports that he was getting lunch with a source in a Washington DC restaurant, when he noticed Ty Cobb, the attorney retained by the White House to assist in responding to various Russia investigations, having a conversation with John Dowd, Trump's "lead outside counsel in the Russia investigations."

Mr. Cobb was not difficult to notice, on account of his incredible moustache:

Mr. Cobb chose to discuss his work in representing the White House in the Russia investigations, and apparently talked loudly and extensively enough about his work to give rise to this story detailing the conflict among Trump's attorneys over the proper level of cooperation in the Russia investigations.

From Vogel's article describing how he got the scoop:

I ordered yet another iced tea, and continued typing away, as Mr. Cobb and Mr. Dowd delved deeper, not paying me any mind.

They discussed presidential privilege and its effect on document production, tensions on the legal team and their colleagues. Mr. Cobb suggested one colleague was not on the president’s good side, but added, “I’m trying to get the president not to pick a fight with her.”

Finally, after more than 45 minutes of my assiduously listening to their conversation by myself, Mr. Cobb picked up the check and announced to Mr. Dowd, “All right, boss, I got to roll back to my little hole. I’ve got like a seven and a half foot ceiling ... Wilt Chamberlain couldn’t stand up in it.”

Attorneys are often warned during training or in law firm policies to avoid discussing matters related to their work in public settings. Whether it is in a restaurant, on the sidewalk, or in the elevator, attorneys should avoid discussing clients and cases, as any information communicated to lawyers is privileged, and attorneys' strategies and theories are protected by the work product doctrine. Speaking up about privileged information in a public setting is a very easy way for an attorney to run into serious problems.

Warnings against public discussion of work are often confined to the hypothetical elevator or restaurant. But Vogel's article gives a spectacular real-world example of what attorneys everywhere should avoid doing.

How to Get Away With Unethical Lawyering, Season 1, Episode 3

At the time I am writing this post, I have seen all of Seasons One and Two of How to Get Away With Murder. To date, about two minutes of Season One, Episode Three remain my favorite moment of the show, as they contain a perfect storm of outrageous ethical violations resulting not in prosecution, expulsion, or reprimand, but in reward for one of the show's main characters. It's outrageous, egregious, preposterous, and represents the law-ignoring mayhem that makes How to Get Away With Murder such fun for nitpickers like myself.

This is the third in my series of posts detailing the ethical violations in How to Get Away With Murder. My first post from a year and a half ago is here, and my most recent post on Episode Two is here. As always, the Pennsylvania Rules of Professional Conduct are my go-to authority on the characters' ethical violations.

That's it for the background, now on to the condemnation...

How to Get Away With Unethical Lawyering, Season 1, Episode 2

Long ago I wrote a post on the first episode of How to Get Away With Murder detailing the plethora of ethical violations committed by the characters. After writing that post, however, work got busier, other legal issues grabbed my attention, jobs changed, and How to Get Away With Murder was not yet on Netflix. My attention turned to other things, and the show (and even blogging) fell off my radar.

Today, I begin to remedy this state of affairs.

This is the first of a regular series of blog posts in which I issue-spot the ethical violations in How to Get Away With Murder. Unlike other commentators who highlight the broader inaccuracies in the show's portrayal of the legal profession, these posts will focus primarily on the ethical violations committed by the show's characters. As with my first post, I will cite to Pennsylvania's Rules of Professional Conduct.

This post (and those to follow) contain spoilers for those who have not yet seen the show. My posts will start with Season One and both seasons of the show are on Netflix, so those of you who want to watch the show and avoid spoilers should have no difficulty catching up.

No Sanctions for Attorney Who Submitted Incomprehensible Certiorari Petition

From the Wall Street Journal Law Blog:

The Supreme Court on Monday declined to sanction a Washington, D.C., patent attorney who faced a rare high court sanction over a petition he submitted that was written in almost indecipherable jargon. 

As Law Blog reported earlier, the justices raised eyebrows in December when they demanded that Foley & Lardner LLP partner Howard N. Shipley show cause as to “why he should not be sanctioned for his conduct as a member of the Bar.” 

Supreme Court observers said they couldn’t recall the last time the nation’s highest court singled out a corporate attorney for possible punishment.

I blogged about this petition earlier, and noted that even though patent law can be complicated, the brief -- due to its awkward structure and use of symbols -- is virtually impossible to understand.

Shipley's attorneys described the brief in friendlier terms, characterizing it as "an unorthodox petition that clearly and faithfully reflects the views of the client, right down to the client’s favored locutions and acronyms employed in his other writings about the patent system."

Florida Man Kills Neighbor, Brings Body to Lawyer's Office

From the incomparable Florida Man Twitter account, I learned of this strange story of a man who claims he killed his neighbor in self-defense, and who brought the body with him to his attorney's office. From the News Press article:

A Lee County man who drove a dead neighbor to his attorney's office will not be arrested, his attorney, Robert Harris, said late Wednesday night. 

John Marshall walked into Harris' Fort Myers law firm Wednesday claiming he had killed a man in self-defense in Bokeelia and brought the body with him in the bed of his pickup.

Robert Harris, the attorney for John Marshall (no, not the renowned Supreme Court Justice) had been counseling Marshall on the conflict between the neighbors. But he was certainly surprised at this turn of events:

Harris said he's never handled a case involving a client bringing a body with him. 

"They don't teach you about this in law school. That's for sure," he said. "I believe we've handled ourselves correctly, but I'm a little in shock myself. This is not something that happens every day."

While law schools may shy away from addressing this scenario, it certainly isn't off limits for law blogs. So what is a criminal attorney to do when a client brings a body (or other incriminating evidence) to the attorney's office?

Florida's Rules of Professional Responsibility state that while lawyers do indeed have a duty of confidentiality toward their clients, lawyers cannot obstruct, destroy, or conceal evidence sought by another party, including the government. Rule 4-3.4(a) states that a lawyer must not:

unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act;

The commentary accompanying the rule notes that parties entitled to the unobstructed evidence include the government. So if a client comes to an attorney with a dead body, the attorney certainly cannot hide or destroy the body, nor can the attorney counsel the client to do so.

Because news outlets are reporting on John Marshall bringing his neighbor's body to his lawyer, it appears that Harris complied with the applicable rules of professional responsibility. Students and professors of legal ethics should take this story to heart, and know that even the most outlandish of hypothetical scenarios occasionally make their way into the real world (or at least Florida).

Some Harsh Words on Dueling

While researching and writing a paper on arbitration by combat and Game of Thrones, I came across the case of Smith v. State, 9 Tenn. 228 (1829). There, Tennessee's Supreme Court of Errors and Appeals evaluated the case of an attorney, Calvin M. Smith (no relation) (hopefully), who had been charged with murder after killing another man in a duel. Smith also faced disbarment for his actions.

The court was not persuaded by Smith's claim that killing another person in a duel was less-deplorable than killing a person in different circumstances:

Taking the petition for true, and how does the case of the defendant stand? By the laws of God, the laws of England from the days of the Edwards; by the laws of Kentucky and Tennessee, and every civilized land, he is declared to have been guilty of wicked and malicious murder, and a felon fled from justice. Is it possible that any well balanced mind can, for a moment, believe that a man whom the law thus condemns, is a fit person to be an aider and adviser in the sanctuaries of justice! 

We are told this is only a kind of honorable homicide! The law knows it as a wicked and wilful murder, and it is our duty to treat it as such. We are placed here firmly and fearlessly to execute the laws of the land, not visionary codes of honor, framed to subserve the purposes of destruction. (237).

The court did not have kind words when describing the various types of people who participate in duels:

It is true, as a part of the history of our species, that many men of strong minds have equally strong passions, which are ill controlled, and subject such men to grosser errors than others with fewer mental advantages; these are the men of worth that fight duels, having no guide but blind and reckless passion when aroused, regardless of their own lives or those of others; hence their conduct furnishes the worst possible evidence upon which to ground a rule for the government of society. This class of duellists are not less wicked than others we will name, but their standing renders it more difficult to punish them. 

Another set of men fight duels (or more generally make a show towards it) to gratify their vanity, by drawing upon themselves a little temporary notice, which their personal worth or good conduct cannot procure. These are always worthless coxcombs, equally destitute of bravery, virtue, or sense, whose feeble nerves would be shattered and prostrated at the sight of an enemy in the field of battle, who are ridiculous in every situation where courage or conduct is required. This class of duellists do little harm other than to disturb the community; they quarrel to make peace; or if officious intermeddlers force them into a fight, are too much alarmed to hit, or perhaps see, their antagonist. The affair is laughed at as a farce, and the parties turned over to the constable. (233).

And recently-admitted attorneys in Tennessee should take note that dueling will most likely have a negative effect on one's ability to practice law:

Let it be once understood that the bar of Tennessee dare not fight, and it will be deemed cowardly to challenge a member of it; and this court solemnly warns every lawyer, that if he violates the laws made to suppress duelling, we will strike him from the rolls of the court, upon the fact being made known to us. The truth is, such men are too often insolent and impudent bullies, who tyrannise over, and impose upon, all orderly men about them; who literally dragoon society, by fear of personal violence, into silence and seeming acquiescence, with respect to their conduct. That such a counsellor is a disgrace, and serious encumbrance to any court where he is permitted to practice, all will admit; those who engage in duels, the statutes deem, and we will treat, as of this description. (234).

Dueling is generally frowned upon in most jurisdictions. Other commentators have noted that dueling convictions have historically led to serious collateral consequences beyond criminal punishment or the ability to practice law. But of the various cases I have read on the subject of dueling, the language in Smith v. State is the most colorful and dramatic that I have been able to find so far.

Judges: Don't Be Afraid to Give Out Candy on Halloween

From Texas Supreme Court Justice Don Willett's wonderful Twitter feed, I learned about this entry in the American Judges Association Blog. It reports on this 2013 story from the Milwaukee, Wisconsin Journal Sentinel. From the article:

Jimmie C. Green, 31, was convicted of a 2009 drive-by gang shooting in Racine that killed a 12-year-old boy. As part of of his appeal, he claimed he might have been prejudiced by the trial judge passing some leftover Halloween candy to the jury.
More specifically, Green claimed his attorney was deficient for not moving for a mistrial when he learned that the jury had sent a thank-you note to the judge for the candy. 

"Green argues that this indirect contact may have caused the jury 'to view Mr. Green’s case as a ‘we vs. them’ matter,' especially given the gang-related evidence," the court wrote in a per curiam decision. 

. . .

Apparently, the judge had given the candy to the bailiff to give the jury, not intending for jurors to know where it came from. But the bailiff mentioned the treats were courtesy of the judge. 

"The record demonstrates that the trial court was well aware of the prohibition against ex parte communication with the jury and avoided any direct contact," the appeals court found. "There is nothing improper about a neutral body providing leftover candy to the jury through the bailiff."

Unfortunately, this case says nothing about judges providing attorneys with Halloween candy. But if a judge were to provide candy to attorneys on all sides of the case he or she was presiding over, I suspect that this evenhanded treatment would avoid any appearance of bias.

Moreover, a quick perusal of the California Code of Judicial Ethics reveals numerous mentions of gifts, but the Code notes that "gifts" are defined as things "of value." If you were to ask me, this would clearly apply to candy, but an ethics board might not share my priorities. Moreover, the Code of Judicial Ethics places numerous restrictions on judges' receipt of gifts, but there seems to be a  lack of discussion regarding judges' giving gifts. So it appears that my candy recommendation may survive ethical scrutiny.

So judges, feel free to give candy to attorneys as well as jurors! At the very least, this practice may result in some interesting judicial ethics test cases.

CONFLICT OF INTEREST ALERT

The author of this post frequently appears in court in front of judges who, if they were to follow the author's recommendations, would give candy to the author. Therefore, the claims and recommendations in this post should at least be taken with a grain of salt -- and it may be even more prudent to regard every claim in this post as entirely untrue.

Pennsylvania Supreme Court Votes to Suspend Justice McCaffery

Dave Hoffman at Concurring Opinions writes that the Pennsylvania Supreme Court has voted to suspend Justice Seamus McCaffery. At How Appealing, Howard Bashman has links to further coverage. The per curiam opinion of the court cites numerous scandals -- including allegations that Justice McCaffery improperly contacted a traffic court judge over a traffic citation issued to Justice McCaffery's wife, claims that Justice McCaffery and his wife improperly gathered referral fees through Justice McCaffery's official capacity, and a recent scandal involving a vast exchange of sexually explicit emails between Justice McCaffery and people at the office of the Pennsylvania Office of the Attorney General.

Meanwhile, an ethics investigation of Justice McCaffery will move forward. Justice Todd dissented from the Court taking an active role in the matter.

The bottom of the per curiam opinion indicates that Chief Justice Castille wrote a concurring opinion. That opinion is available here, and it is merciless and unlike any opinion I have ever read. I cannot do justice to the opinion with descriptive terms, so I conclude this post with the parts of the opinion that I found particularly noteworthy (though I recommend you read the entire thing):

Justice McCaffery blames me for a series of egregious acts of misconduct on his part. However, it was not I who caused his wife to be cited for driving the wrong way on Market Street. It was not I who caused Justice McCaffery to meet with the main Philadelphia Traffic Court ticket fixer, an admitted felon, to “discuss” his wife’s ticket which was then dismissed by a Traffic Court judge who later pled guilty to federal crimes arising from ticket fixing. It was not I who subpoenaed his wife’s traffic ticket file which was then officially brought to my attention as part of the review of Philadelphia Traffic Court – that was the work of the FBI. It was not I who gave his wife, a Supreme Court employee, permission to run a law practice out of a Supreme Court chambers, earning millions of dollars. It was not I who referred that matter to the US Attorney’s Office. It was not I, but it was Justice McCaffery, who hired Chadwick Associates to assist in reforming Philadelphia’s criminal courts and who was lawfully compensated for his services to the Philadelphia Court system for his professional work. 

. . . 

Justice McCaffery is correct in one of his allegations against me. I have been attempting to remove Justice McCaffery from this Court. In my two decades of experience on this Court, no other Justice, including Justice Joan Orie Melvin, has done as much to bring the Supreme Court into disrepute. No other Justice has failed to live up to the high ethical demands required of a Justice of this Court or has been the constant focus of ethical lapses to the degree of Justice McCaffery. 

. . .  

As a prosecutor in the Philadelphia District Attorney’s Office, I often had the occasion to review pre-sentence psychiatric reports, although I do not claim to be an expert in the field. One pathology that I do recall, and as confirmed in a review of a prominent medical journal, describes the pathology of an individual who has the personality traits of not caring about others, thinking he or she can do whatever is in that person’s own self-interest and having little or no sympathy for others. The most telling pathology is that when that person is caught, or called out for his transgressions, that person does not accept blame but instead blames others for his or her own misconduct. Those pathological symptoms describe a sociopath. So far in the blame game, Justice McCaffery has blamed the US Marine Corps, the US Air Force, the Philadelphia Police Department, Chadwick Associates, the US Attorney and the FBI, Attorney General Kathleen Kane, now Justice Michael Eakin, and myself for the consequences arising from actions all initiated by him, but thought by him to be of little consequence: just a few “cooked up controversies” by his perceived tormentors. 

How to Get Away With Unethical Lawyering: Episode 1

I recently watched the pilot episode of ABC's How to Get Away With Murder. I blogged about the show back in May when the trailer first came out. I noted that the show appeared to be "(1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter."

After watching the pilot, I think it's safe to say that I was right.

The show is centered around a criminal law professor, Annalise Keating (played by Viola Davis), at a fictional law school in Pennsylvania. She teaches criminal law while simultaneously running a highly successful criminal defense firm out of her home. For her assignments, she tells students the facts of cases she is defending and asks them to provide their own defense theories. Students who do the best are promised a job at her law firm.

The show also highlights several of her students, in particular, Wes Gibbins, played by Alfred Enoch. Gibbins, a bright-eyed first year law student starts out by making the classic mistake of not being prepared for the first day of class. He soon dives into Keating's world of criminal defense and intrigue.

With a premise like this, how can't there be a slew of ethical violations? After the break, I discuss the specific ethical problems that I noticed in the pilot episode. Because the show seems to take place in Pennsylvania, I will use Pennsylvania's Rules of Professional Conduct in determining whether ethical violations have occurred, and any reference to a "rule" will be to these rules unless I note otherwise. Warning, spoilers ahead.

Should Judge Posner be Recused from Anti-Abortion Speech Cases?

Gerard Magliocca raises this question over at Concurring Opinions in light of Judge Richard Posner's article at Slate, where he comments on McCullen v. Coakley. In McCullen, the Court struck down a Massachusetts law that prohibited people from standing within 35 feet of the entrance to reproductive health care facilities. The law was enacted in light of protesters who would approach patients seeking abortions and attempt to deter them from undertaking the procedure.

The Court held that the 35-foot buffer zone violated the First Amendment. Even though the law did not regulate the content of speech, the First Amendment required the law to be "narrowly tailored to serve a significant governmental interest." The 35-foot buffer zone was too broad, since the state could have chosen to prosecute those protesters who harassed or intimidated women seeking abortions, or gotten injunctions against specific people or groups who were particularly disruptive.

Magliocca suggests that counsel in any cases involving laws restricting the speech of those protesting abortion should file a motion seeking Judge Richard Posner's critical commentary of the Court's decision. Posner, in his commentary, writes:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

28 U.S.C. § 455(a) states: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Magliocca argues that Posner's remarks in the article raise reasonable questions about whether he can be impartial toward anti-abortion protesters.

What would Posner think about a motion for his recusal based on opinions he's expressed outside the courtroom? In an interview with Posner, published in the American Bar Association Journal, Joel Cohen raises this very question:

[Posner]: I don't have a reputation for being vengeful, do I? 

[Cohen]: I'm not suggesting that. I'm suggesting if I were a litigant before you and you had written articles containing, shall I say, some vitriol about a position that I might want to articulate in your courtroom, I might want to get you off the case. It would be easier for me if I were rarely before your court. It seems to me when you write, as you do so frequently, it could raise an issue that might concern litigants. Whether they make a recusal motion or not, they might wonder if they'll get a fair shake before a judge with so many, many opinions as you have. 

[Posner]: The fallacy, I think, in what you're saying is the concept of the fair shake. I don't think people have the right to a tabula rasa—some total ignoramus who's never thought about any of the issues. And if you've thought about them, you have opinions. Why shouldn't you express them? You have to be ready to change them obviously. But you give people useful information by telling them what you think.

From this answer in the interview, it looks like Posner would not be very receptive to the motion that Magliocca suggests. Posner may argue that his article in Slate does not foreclose the possibility that he will change his opinions, so it is not reasonable to question whether he will be impartial in anti-abortion protest cases. And Posner may also point out that it is better for parties to know what he thinks, since this information may be useful.

I am not sure that this explanation could overcome concerns raised by Posner's commenting that certain parties are "nuts" and that their contribution to the marketplace of ideas is "negligible." While Posner may hold these opinions, committing them to writing and publishing them on Slate indicates that these opinions are probably more solidly-held than other opinions than ones he would not be willing to argue to the public. And while it may be useful for parties to know what judges think, it is not immediately clear to me how parties can make constructive use of the knowledge that Posner thinks they are "nuts."

ABA Ethics Committee: Lawyers May Look at Jurors' Social Media Pages

The Washington Post reports:

Lawyers are now allowed to look at the “Internet presence” of a juror or a potential juror, according to the American Bar Association’s committee on ethics and responsibility. Your likes and your faves are now up for review when you are being considered for jury duty or even when you’re already part of a jury. The ABA committee announced its decision in a formal opinion issued in April, noting that in the modern world, “the line … between properly investigating jurors and improperly communicating with them” is blurred. The same is true of what separates our selves from our avatars.

. . .

The determination: Lawyers cannot send a Facebook friend request or, say, ask to follow a private Twitter or Instagram account. Lawyers canpassively review a juror’s social media postings, with idly checking a person’s public Twitter page no different than driving down a person’s street to see if anything jumps out, the ABA says. But actively reviewing a person’s social media life — say, sending a friend request, which is compared by the ABA to driving to a person’s home, knocking on the door and asking for permission to snoop around — that’s a no-no. (Judges, meanwhile, are advised to tell jurors that their backgrounds — Internet presence and all — may be investigated by the lawyers in the case.)

The full text of that formal opinion, which was released in April 2014, is available here.

This seems to be a sensible decision, although I am surprised that it has taken so long for an opinion like this to be released. Attorneys would do well to know the inclinations of potential jurors, and opinions that jurors are willing to share on publicly accessible Facebook or Twitter pages should be fair game for attorneys who want to know which of the jurors are more likely to be impartial.

While this decision makes learning about jurors less of an ethical gray area for lawyers, the decision notes that with great power, comes great responsibility. Lawyers who look over the social media pages of jurors may have an obligation to report juror misconduct to the court. From the opinion:

By passively viewing juror Internet presence, a lawyer may become aware of a juror’s conduct that is criminal or fraudulent, in which case, Model Rule 3.3(b) requires the lawyer to take remedial measures including, if necessary, reporting the matter to the court. But the lawyer may also become aware of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, and Rule 3.3(b) does not prescribe what the lawyer must do in that situation. While considerations of questions of law are outside the scope of the Committee’s authority, applicable law might treat such juror activity as conduct that triggers a lawyer’s duty to take remedial action including, if necessary, reporting the juror’s conduct to the court under current Model Rule 3.3(b).

It is good to know that lawyers have the ABA's blessing to look over jurors' publicly available social media information. Hopefully this information does not get out to too many potential jurors, however, since those who are less inclined towards jury duty may begin publishing "strategically-worded" posts in order to prompt lawyers to challenge them.

How Not to Respect a Defendant's Right to a Speedy Trial

From Legal Cheek:

The incident, which occurred yesterday, sees Judge John Murphy berate public defender Andrew Weinstock in a highly unprofessional manner after he became annoyed at his refusal to waive his client’s right to a speedy trial. The judge then invites the lawyer to “go out back” to an area of the court with no cameras. The courtroom camera captures audio of shouting, swearing and what seems to be a scuffle, with several loud thuds.

The story was initially reported by Florida Today, which provides a video of the incident. The video includes the judge's shouting at the public defender, the judge and the public defender exiting the room, what sounds like an ensuing scuffle, and the applause (at 1:40) by the spectators in the courtroom upon the judge's return.

From the rest of the video, it looks like the defendant ended up asking for the speedy trial anyway, despite his lawyer's disappearance from the courtroom. The judge scheduled the trial for June 9, one week later. This is unsurprising, as the judge sounds out of breath after his return to the courtroom and was probably too exhausted to engage in a second (alleged) brawl over the defendant's Sixth Amendment rights.

Legal Cheek reports that the Public Defender's office will be reporting the incident to the Florida Bar.

New ABC Show on Why Law Students Should Take Professional Responsibility Before Criminal Law

ABC's upcoming show, How to Get Away With Murder, looks like it will be two things: (1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter. Here is the trailer:

Consider the third piece of advice that the professor gives to her students: that students "bury" any adverse evidence. This will almost certainly lead to violations of Model Rule of Professional Conduct 3.4, which prohibits attorneys from unlawfully altering or concealing evidence. The comment to the rule acknowledges that criminal defense attorneys may come into possession of incriminating evidence, and while they may perform their own analysis of the evidence, they may not destroy or alter the evidence in the process, and may ultimately be required by law to turn the evidence over to law enforcement.

Even more disturbingly, students taking a criminal law course may be interested in criminal prosecution, rather than criminal defense. If prosecution-inclined students take the "bury" advice to heart and apply it in the prosecution setting, they will commit flagrant Brady violations, leading to reversed convictions and likely sanctions for prosecutorial misconduct. These students will also run afoul of Model Rule 3.8(d), which requires prosecutors to reveal exculpatory evidence to defense attorneys.

It will be interesting to see how this show is received by the legal crowd and the general public. The show seems to focus on law school rather than on practicing lawyers, which is a risky move. But if the trailer is any indication, the show's portrayal of legal education may be so inaccurate that it may end up being a success.

I also look forward to the show's spin-off, How to Get Away With Unconscionability, where the students' contracts professor only lists one phrase on the board: "Arbitration Clause."

Karmakar and Tormala on Certainty and Persuasion

I'm no expert on psychology or source certainty. But I am certain that this article by Uma Karmarkar and Zakary Tormala is worth looking at. The title is, Believe Me, I Have No Idea What I Am Talking About: The Effects of Source Certainty on Consumer Involvement and Persuasion, and the citation is Journal of Consumer Research 36, no. 6 (2010): 1033–1049. (I got the information on the full citation here.)

Here is the abstract:

This research explores the effect of source certainty-that is, the level of certainty expressed by a message source-on persuasion. The authors propose an incongruity hypothesis, suggesting that source certainty effects depend on perceived source expertise. In three experiments, consumers receive persuasive messages from sources of varying expertise and certainty. Across studies, low expertise sources violate expectancies, stimulate involvement, and promote persuasion when they express certainty, whereas high expertise sources violate expectancies, stimulate involvement, and promote persuasion when they express uncertainty. Thus, nonexpert (expert) sources can gain interest and influence by expressing certainty (uncertainty).

I wonder if law students with blogs would be able to express certainty for persuasion's sake without running up against rules prohibiting the unauthorized practice of law. While I have my disclaimers page here that warns readers that nothing I say is advice, I wonder if too-certain statements elsewhere in the blog would negate my warnings. This is inconvenient from a persuasion perspective, since the disclaimer page probably establishes I am a non-expert.

The Implications of the Vague Revelations of Eavesdropping on Attorney Communications

The New York Times reports:

A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

The BBC reports on the story here. The NSA "provided clear guidance," says the Times, but nothing more is specified. Orin Kerr notes that this story does not appear to implicate the NSA in any notably invasive behavior:

As I understand it, the Times story is based on a short entry in an NSA internal bulletin celebrating the liaison office’s accomplishment. It reports that the liaison helped clear up a legal issue, and that it all ended well, as the Australians ended up giving useful intel to the U.S. But because it’s just an internal bulletin, it doesn’t tell us what we want to know: What advice was provided, and whether the intel was related to the legal issue. Without that information, it’s hard to know if there’s a significant story here.

The story is still interesting, given the implications for attorneys who are dealing with foreign clients. The Times reports:

Andrew M. Perlman, a Suffolk University law professor who specializes in legal ethics and technology issues, said the growth of surveillance was troubling for lawyers. He helped create the bar association’s ethics code revisions that require lawyers to try to avoid being overheard by eavesdroppers. 

“You run out of options very quickly to communicate with someone overseas,” he said. “Given the difficulty of finding anything that is 100 percent secure, lawyers are in a difficult spot to ensure that all of the information remains in confidence.”

While the story does not reveal very much about the NSA's role in this chain of events, or the particular information that was being monitored, it is a good reminder that attorneys who are working with foreign clients should be aware that their conversations may not be completely private.

Christopher Soghoian notes that there is something notable in this story, albeit, something that is buried and not necessarily related to invasive NSA behavior:

Last para of NYT story is nuts: Australian intel agency "obtained" crypto keys (Ki) for 1.8 mil Indonesian SIM cards. http://t.co/a2MHr4CXaD
— Christopher Soghoian (@csoghoian) February 16, 2014

Here are the last two paragraphs from the Times' story:

The Americans and the Australians secretly share broad access to the Indonesian telecommunications system, the documents show. The N.S.A. has given the Australians access to bulk call data from Indosat, an Indonesian telecommunications provider, according to a 2012 agency document. That includes data on Indonesian government officials in various ministries, the document states. 

The Australians have obtained nearly 1.8 million encrypted master keys, which are used to protect private communications, from the Telkomsel mobile telephone network in Indonesia, and developed a way to decrypt almost all of them, according to a 2013 N.S.A. document.

Soghoian is correct to point out that these final paragraphs indicate that there is a lot going on behind the scenes that this story does not explicitly illustrate. It will be interesting to see if more information is released regarding how the NSA obtained access to the data from Indosat and how the Australians obtained the keys to the Telkomsel network.

Jamie Casino's Super Bowl Commercial: The Story and Ad's Ethical Implications

Several of my friends in law school have rediscovered why they set out to pursue the legal profession after watching personal injury attorney, Jamie Casino's, two minute commercial that aired on a local Fox network during the Super Bowl. Here is the commercial:

The New York Daily News explains the story behind the ad:

Jamie Casino wanted to clear his brother's name, and he used halftime at the Super Bowl to do it. 

Casino, a personal injury attorney in Savannah, Ga., created what may be the most insane Super Bowel commercial ever made, which aired during a full 2-minute segment at halftime on local FOX affiliate WTGS. 

Instead of cute puppies, super cars and celebrities — Casino topped them all with some masterful special effects and a powerful message to publicly indict a former police chief and vindicate his family in this spot that was "based on a true story." 

During Labor Day weekend 2012, Casino's brother Michael Biancosino, 30, and Emily Pickels, 21, were shot and killed in Biancosino's vehicle as he gave her a ride home. 

There were two other murders that weekend, and Casino told the Daily News on Tuesday that then Police Chief Wille Lovett, whom he referred to as a creep, told the media in a press conference, "There were no innocent victims."

The Daily News goes on to note that Lovett tried to explain his remark by adding that the perpetrators of the crime were targeting other criminals who were known to drive the same type of car that Biancosino drove. This explanation actually squares pretty well with the Lovett quote in the commercial, which is, "No innocent people were targeted."

Casino's commercial takes on Lovett, with Casino stating that Lovett implied Biancasino was a criminal in order to maintain the illusion of control. The commercial also contains a gravestone stating a number of fictional newspaper headlines, including, "Chief Covers Up Labor Day Tragedy."  Casino eventually smashes the gravestone with a flaming sledgehammer bearing the name of his brother, Michael.

With all the attention being paid to this commercial, an evaluation of whether this advertisement is ethical may be warranted, especially if other attorneys look to copy Casino's techniques.

Rural Lawyers and Abandoned Practices

Over at the Volokh Conspiracy, Will Baude has an interesting post that discusses this article by Jim Hannah about the "abandoned practices" that are left behind when solo practitioners die or are disbarred.

Baude notes that some states have policies that require solo practitioners to have "surrogate" lawyers in place who will take over when the lawyer dies.  Comment 5 of Rule 1.3 of the Model Rules of of Professional Conduct encourages that this type of planning be part of a lawyer's duty to diligently represent his or her
clients:

To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action.

I think that this rule is particularly important in states that have large rural populations.  When a state's geography is such that people live in small towns scattered across the landscape, those people who don't want to travel a great distance to find a lawyer will probably rely on a local lawyer (if one is available) for their basic legal needs.  A town with a small population would probably not be able to sustain much more than one or two solo practitioners.

And if these practitioners die or are disbarred, the consequences that Baude highlights will be exacerbated by the difficulty of finding a new attorney.  People in small towns will not only need to go through the difficulties of finding a new lawyer and updating that lawyer on their legal needs, but they will need to locate this lawyer and likely travel long distances to establish this relationship.

My account here is largely based on anecdotes I have heard from Iowans, but this New York Times article highlights the difficulties facing states and communities with a dearth of rural lawyers.  In addition to reading the entire Baude post Hannah article mentioned above, I recommend that people check out the New York Times article if they are interested in learning more about this important issue.