There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for ”finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that ”the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence.  It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal.  We don’t, in common discourse,  isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding  seems itself to be a function of his willingness to apply the language of that Code in a more expansive way. 

Judge Fine concedes that demonstrably false statements are not constitutionally protected. But suggests, however, that the truth and falsity of political speech as nonjusticiable, i.e., not for judges to decide. (Indeed, he also seems to believe that the legislature could not pass upon the question either, saying that the election is the only forum in which truth and falsity can be assessed.)

I suppose that, in some metaphysical sense, there may be a distinction between constitutional protection of speech and the constitutional proscription of the examination of such speech by any arm of government, but, if there is, it is passingly small.  Constitutional protection of speech is some measure of freedom from state interference.

Indeed, Judge Fine seems to be saying that the problem is with the rule and not necessarily the idea of sanctioning the speech at issue here. Thus, he emphasizes that he is holding the rule prohibiting knowingly false statments to be facially unconstitutional.

He clearly regards the prohibiton of “false” statements to be vague, i.e., he wants more guidance for courts than a simple admonition against knowing falsity before permitting sanctions on political speech.

But what would that be? There is certainly no blanket First Amendment protection against the judicial assessment of the truth and falsity of political speech. In the defamation context, the Supreme Court has permitted the imposition of liability for false speech that is defamatory if it is made with knowledge, or in reckless disregard, of its truth and falsity. There are those who argue – and with good reason – that the assessment of the veracity of political speech should not go past the defamation context, but that’s not what Judge Fine says – at least not in so many words.

It may be that Judge Fine wants a more objective standard of truth and falsity than one in which a tribunal may interpret a statement to identify the false implication of a collection of literally true statements. If that’s so, then  doesn’t his his view elide into that of the majority? They read the rule strictly to require finding an explicit and literally false statement. Perhaps he would uphold a rule that required a finding that a discrete claim is literally false.

How to teach ethics and morality, or even if it is appropriate to do so, has been a much discussed topic in the legal academy, going back at least to the Watergate Crisis of the mid-1970’s.  One aspect of the debate has involved what to call the basic course in legal ethics and professional responsibility required of all law students.  Should the course be primarily about the formal rules governing lawyer conduct or should it focus on the ethical conduct of lawyers separate and apart from the rules that govern them?  Although course titles can be misleading, they often reflect the way that a particular institution has answered this question.

Marquette’s experience has reflected the uncertainty over the proper name for the course that used to be universally known as “legal ethics.”  While the course at Marquette traditionally was called “Legal Ethics” at some point that title was abandoned, and the over the past twenty years it has been known variously as “Professional Responsibility,” “Law and Ethics of Lawyering,” and the current “Law Governing Lawyers.”  At Marquette, the term “ethics” was in the course name, then it wasn’t, then it was brought back, albeit in a secondary position to “law,” and then it was dropped again.  Although the current course description refers to “ethical principles” they are listed as second to “legal principles,” and the course’s focus is described as primarily a “study of the principal ways in which lawyers are regulated.”

From 1997 to 2000, Marquette had a second required course on the legal profession, called “The Lawyer in American Society.”  Initially, the primary text for this course was American Legal Ethics by the noted ethical theorist Thomas Shaffer of the Notre Dame Law School.  Shaffer’s book was not about the Rules of Professional Conduct but about the moral consequences of becoming a lawyer.  After the first year, the Shaffer text was abandoned, although one section did replace it with another Shaffer book entitled, Lawyers, Clients, and Moral Responsibility. By the end of the second year of the four year experiment, the ethics focus of the class was largely abandoned.

Why does Marquette Law School, a branch of a Christian university, seemingly have such difficulty in holding itself out as a teacher of ethics and morality?   Why don’t we still call the course “Legal Ethics”?

I am not suggesting that individual professors do not raise questions of ethics and morality in their classes. I am certain that many do.  But at the level of course names, we seem to be reluctant to use words like “ethics” and “morality,” as our inability to settle on a permanent name for our required course on professional obligations suggests.

This phenomenon is not limited to Marquette.  As an experiment, I examined the web pages of 20 leading law schools to determine how each school deals with the question of what to call its basic course in professional obligation.

Of the twenty schools, only Notre Dame refers to the course simply as “Ethics,” but five others include the word “ethics” in the course title.   Northwestern still uses the traditional “Legal Ethics” and at Washington University, the course is “Lawyer Ethics.”  Other schools combine “ethics” with other concepts as Marquette did in the most recent former name of the course.  The University of Michigan uses “Ethics and Law of Lawyering—the Marquette version of this switched ethics and law.  At the University of Chicago, the title is “Legal Practice and Ethics” while it is “Ethics, Business, and Lawyers” at the University of California-Berkeley.

The most popular name for the course is the ethically neutral “Professional Responsibility” which is how the course is known at the University of Virginia, Georgetown, Penn, Columbia, Texas, Stanford, Vanderbilt, Washington & Lee, and UCLA.  Wisconsin, apparently to emphasize the multiplicity of obligations, calls it “Professional Responsibilities.”  At NYU, it is “Professional Responsibility and the Regulation of Lawyers;” while at Yale it is “Professional Responsibility and the Legal Profession.”  Harvard, being Harvard, uses its own name, “Legal Profession.”

If law schools do decide to follow Crittenden’s recommendation and focus much more explicitly on ethical and moral behavior on the part of lawyers and clients, a good way to start would be to return to the use of “Legal Ethics” as the name of the basic courses in … legal ethics.

I will acknowledge that teachers of this course in Wisconsin do face a type of pressure to orient their courses around the formal rules governing the practice of law that does not exist in other states.  Forty-six states now require prospective lawyers to take the Multistate Professional Responsibility Examination, a separate examination that requires knowledge of the American Bar Association’s Model Rules of Professional Conduct.  Law students in these states invariably take an MPRE review course which provides them with a systematic presentation of the Model Rules.  Three of the other four states test knowledge of ethical rules as part of the regular bar examination and the topic is covered, sometimes extensively, in bar review courses for those states.

Wisconsin’s diploma privilege, however, means that the only exposure that students at Marquette and the UW receive to the rules governing law practice is what they are exposed to in their required Professional Responsibilities or Law Governing Lawyers course.  However, I do not find persuasive the argument that there is not time in this class to provide both a thorough explication of the Wisconsin Rules and to challenge students to think systematically about the moral and ethical obligations that follow from bar membership.

I, for one, would be happy to see the name of our course returned to “Legal Ethics.”

I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Over the years, I’ve collected accounts of judges reprimanding lawyers for unprofessional conduct related to research and writing.  This one stands out because the judge went several steps beyond chastising the attorney for poor writing.  The judge

• hand-wrote comments and corrections on the motion;
• ordered the attorney to hand-deliver the order personally, along with the marked-up motion, to the client
• ordered the attorney to read local court rules and the Federal Rules of Civil Procedure, and
• ordered the attorney to file with the court a certificate of compliance when he had completed these tasks.

(A note to my first-year students:   I know that getting back marked-up copies of your memos this week is painful.  It would be more painful to have a judge mark-up your writing and then order you to show it to your client.)

I wonder how the client feels in this situation.  I worry about how difficult it is for layperson clients to know which lawyers are worthy of their trust and worth the fees.   Often clients choose among lawyers on the basis of advertising, which leads into the second professionalism discussion that has stuck with me this week, lawyer solicitation letters to individuals involved in car accidents.

In New Jersey, an attorney organization composed primarily of personal injury attorneys requested that the state completely prohibit attorney solicitation letters to accident victims, except in cases where an attorney already had a business relationship or close personal relationship with the person involved in the accident.  Ultimately, the New Jersey Supreme Court Professional Responsibility Rules Committee recommended a waiting period of 30-days for such letters.

Wisconsin has no ban on solicitation letters and no waiting period.  When an individual in Wisconsin is involved in a car accident for which an accident report is generated, that individual will likely receive a solicitation letter from an attorney, even when the accident report states that there were no injuries.  This attorney advertising does not violate Wisconsin ethical rules on advertising, SCR 20:7.1 and 20:7.2, as long as the solicitation letter is not false or misleading and does not create unjustified expectations of the results the attorney can achieve.

My question is whether this type of solicitation via letter, though not unethical, is somehow unprofessional.  I’ve certainly heard from individuals who believe the solicitation tarnishes the reputation of the legal profession.   Some believe the solicitation may manipulate people in a vulnerable position.  On the other hand, individuals involved in car accidents may benefit from immediate assistance from a lawyer because they are in a vulnerable position and need to take steps to protect their rights.

This dilemma is not new.  In reading about client solicitation, I ran across these words from Justice Blackmun:

In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.  Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Bates v. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).   I also learned that Abraham Lincoln solicited three different potential clients  by letter in a railroad taxation dispute in Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291 (1855).  These potential clients had adverse interests.  (If you want to read more about Lincoln’s solicitation letters in that case, I suggest Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal And Ethical Perspective, 65 Marq. L. Rev. 547 (1982)).

Is there something unprofessional about lawyer solicitation letters after accidents?  I wonder what other Wisconsin lawyers think.

(Editor’s note: The nice photo of a mosaic representation of Justice, inside the Wisconsin State Capitol, was found here.)

Of course, lawyers aren’t the only ones whose livelihood is affected by their online postings.  There’s this, and this, and this.  Having one’s online activity be the basis of dismissal has increased so much that a new phrase – “Facebook fired” – has entered our lexicon. 

But being a lawyer means something more.  Lawyers have long been held to a higher standard of conduct than other members of society.  As the New York Times article points out, your “freedom to gripe is limited by codes of conduct.”  Thus, criticizing the court or revealing client details online – even if the lawyer thinks she’s veiled the true subject – can cause trouble for a lawyer because she runs the risk of violating rules of professional responsibility.

Similarly, when a lawyer’s online activity belies what he’s told his superiors or the court, trouble can follow.  According to the New York Times article, a lawyer asked a judge for trial delay because there was a death in his family.  The judge granted the delay, but noticed on the lawyer’s Facebook page that while there was indeed a death in the family, there were also a number of posts by the lawyer about partying and motorbiking.  When the lawyer asked for a second delay, the judge denied his request and notified his firm.  Repercussions for such conduct may be not only the loss of one’s job, as it might be for others in society, but also fines and discipline by the state’s board of bar examiners or other office of lawyer regulation.  In fact, some lawyer licensing organizations are considering or adopting policies whereby they examine applicants’ social networking sites as part of the licensing process.    

This topic, which can be broadly categorized as the professionalism of the younger generation of lawyers, is a topic that is often talked about in the legal academy, particularly among those of us who teach legal skills.  Our students are of a generation that has grown up with email and the Internet, with reality television shows, and a penchant for revealing to the public their personal lives and thoughts. 

However, most practicing lawyers grew up in generations that emphasized a certain formality of one’s conduct, and law has always been a more conservative profession than most.  The influx of a younger, more open generation into the profession means that there will inevitably be a difference in how each defines what it means to be a professional.  A younger lawyer would likely see nothing unprofessional with posting a rant about the partners at his firm, especially if he doesn’t expressly name them (e.g., “Suffered through a two-hour meeting today with the boring partner and the a-hole partner.”), whereas an older lawyer, who may think the exact same thing, would find such a public disclosure wholly unprofessional. 

 There are, I believe, positive aspects of social networking.  When life is so hectic, it’s nice to quickly catch up with family and friends all over the country by checking status updates on Facebook.  But not everything that goes on with my family and friends is something that I want to know – or think I should know.  There comes a point when what’s posted is too much information (TMI).  And most of the time, TMI often translates into “unprofessional,” especially if you’re a lawyer or lawyer-to-be.

Truth be told, it’s not easy to keep client service in mind.  We think of ourselves as practitioners of the law–and we are–and we often want to do things in the way we see as “right” or interesting or novel. When I say “right” I’m talking about your professional opinion about the way things ought to be done, not an ethical or moral rectitude. But sometimes our clients don’t want or need things done the way you or I think they ought to be done. Sometimes clients want interesting or novel thinking, and sometimes they don’t. That’s when it can be difficult to remember that your job is to serve your client and not simply to practice law by your own lights.

Consider a poignant example. I recently sat in a room with one of my company’s outside counsel who is handling a large litigation for us.  She enjoyed telling me the story about defending one of her first big cases in which damages to her client could have been in the range of several tens of millions of dollars. The case settled for closer to ten million, and her client celebrated the result. She thought the client had gone insane: who celebrates losing ten million dollars, and not clearing their good name in court to boot?  But her feelings demonstrate the disconnect between a then-less-seasoned attorney and her client. She wanted to try the case and score a “win”; the client wanted to minimize risk and expense, and believed that settling the case for a fraction of the potential damages was the way to achieve that goal.  She did not have a good understanding of her client’s view of the world, nor of her client’s goals at the time.  If she had, she would have celebrated the “win” with the client rather than doubting the client’s sanity. 

Talk to your clients. Understand their goals. Discuss various ways to achieve those goals. Realize that your client may desire a result or a way of getting to that result that is not what you would have chosen. Then go out and deliver what your client asked for. You’ll find this to be a successful  business model (gasp!).  Lawyers are notoriously bad business persons, but at a minimum we should be good listeners. And if listening leads to action and good communication between you and your client, you’ll find that your legal practice is ultimately more successful and more fulfilling. If you don’t listen to your clients, you may find that you don’t have much law to practice.

This is not to suggest that you should avoid communicating frankly with your clients when their expectations are out of whack. Quite the opposite. You are the professional, and the subject matter expert. But sometimes clients tell us their goals and we go right to the list of reasons why those goals can’t be achieved. Before you do that, take a moment to think outside of the box. Can you do something differently, or approach the problem in a different way, in order to deliver results for your client?  Talk it over; think it over; be creative and thoughtful. And once you’ve looked at the problem from all sides, communicate with your client about realistic expectations.

One final thought on client service: win the easy ones (as a certain Marquette University Law School Dean likes to say). If your client has a deadline, meet it. If your client wants the work product to be in a certain form, make it so. If your client wants to be updated on a specific schedule, then update them accordingly. You’d be surprised–or perhaps you wouldn’t–how many lawyers fail miserably at these very simple tasks. When you can’t deliver on these basic requests, when clearly communicated to you by your client, why should anyone think that you can deliver good work on more complicated tasks?  Win the easy ones and you’re 90% of the way towards making your clients happy.  Remember, lawyers provide service, we don’t just practice law. Act accordingly.

In theory, this may be true, and perhaps large clients (as in those who spend enormous sums of money with their law firms on an annual basis) have put some of this theory into practice.  But I’m not so convinced that the billable hour has earned its demise quite yet.  For one thing I work as in house counsel at a Fortune 1000 company and I see very few alternative billing arrangements.  (For another, I used to work at a big law firm that also saw few alternative billing arrangements.)  That is due in part to our own taste for risk.  After all, alternative billing arrangements must incentivize both parties, meaning the client may end up paying more for a given set of services than it otherwise would have under a billable hour system.

For instance, if I hire an outside lawyer to handle a litigation for my company and the lawyer agrees to take the engagement on a flat-fee basis, both my lawyer and I take on risk.  She bears the risk of cost-overruns (i.e. performing the work less efficiently than she anticipated).  I bear the risk that the litigation will turn out in such a way that it would have been cheaper for me to pay by the hour (e.g. a good settlement opportunity arises early in the case).  It is the latter risk that causes some clients to balk at the idea of alternative billing in some cases.

I may be overstating the case a bit.  I’m not personally afraid of the risk that my lawyer will work more efficiently and, as a result, make more profit.  In fact, I’m glad to see it because we’ve aligned our incentives–I get my lawyers behaving how I want them to behave (staffing cases leanly, working efficiently, focusing on lawyering and letting non-lawyers perform non-lawyer tasks), and my lawyers get to earn more money and act more like lawyers, instead of churning out billable hours on menial tasks that don’t require a law degree, or perhaps even a college degree.  But I know other in-house lawyers who are afraid of the risk that the current iterations of alternative billing arrangements just misalign incentives in other ways and create the risk that they’ll pay more than they would have under a billable-hour system.

The problem is viewing the lawyer-client relationship (or any relationship for that matter, if you’ll briefly indulge my pontification) as a zero-sum game.  It is not about making sure that the client wins and the lawyer suffers; although after years on end of the billable hour system, I assure you that is how some clients feel.

Instead, alternative billing arrangements will work when lawyer and client understand that both must benefit from the arrangement.  Clients can cap their exposure and create predictability for their business people, which is all most clients are after, and lawyers can stop writing down what they’re doing every minute of the day, focus on turning over the right stones instead of all the stones, and earn a good living doing it, while also sharing the risk with the client that lawsuits and legal transactions don’t always go as planned.

Until clients and lawyers figure out how to align their incentives–not an easy task–and accept that their financial relationship is not a zero-sum game, the billable hour is not going away.

Don’t get me wrong.  I’m not saying I don’t want the billable hour to go away, both for my lawyers’ sake and my own.  But I don’t believe it will anytime soon.  Inertia is a powerful force, and, as Donald Rumsfeld might say, unknown unknowns are more frightening than known unknowns.

While Professor Kingsfield surely sits at one end of the spectrum for professorial style, the Socratic method he uses endures.  It is, as one text notes, law school’s “signature pedagogy.”  It’s the way the law school professors across the country have been teaching law students about legal analysis for more than a century.

And students learn.  They begin their first year of law school with, to paraphrase Professor Kingsfield, “a head full of mush.”  Even by the end of that first semester, though, most 1Ls have developed an ability to turn that mush into cogent analysis, to make fine-line distinctions, to look for weaknesses in another’s argument, and to argue both sides of any issue; in other words, they learn to “think like a lawyer.”  This “thinking like a lawyer” is undoubtedly a necessary professional skill; however, mastering the process can come at a personal cost.

For all of the successes of the Socratic method, some have argued that it has serious flaws.  Most recently, Professor Elizabeth Mertz has criticized the Socratic method because of its “acontextual context.”  She notes that the Socratic method virtually ignores morality and social context in its attempt to teach students “objective” analysis.

Most lawyers will readily agree that to “think like a lawyer” is to think differently than others.    For some, this is unsettling because the rational, analytical processes one gains while learning to “think like a lawyer” can make them feel that their core values are being challenged or even changed.  Professor Lawrence Krieger, in his pamphlet “The Hidden Sources of Law School Stress,” says that “[i]f you begin to ignore your sense of right and wrong . . . in order to rationalize any possible outcome, you will dampen the ideals and values that brought you to law school in the first place.”  This loss of connectedness to one’s long-held personal beliefs affects one’s sense of self.

This shift in thinking can also mean a shift in the law student or lawyer’s personal relationships.  Several years ago, Marquette Law School alumnus Steven Radke was asked to give remarks at a reception during Orientation.  Among the many wise things Radke said was this:  “Over the next few years, you will develop a highly tuned ability to make distinctions that do not make a difference to most people, a capacity to see ambiguity where others see things as crystal clear, and an ability to see issues from all sides.  You will be able to artfully manipulate facts and sharply and persuasively argue any point. . . . [But] your spouse is not the appropriate person on whom you should practice any of these skills.”  For that matter, neither are parents, children, and friends who themselves are not lawyers.  I will never forget a classmate of mine telling a story about her mother, a lawyer, who once spent a long day in depositions.  The mother asked my classmate, then a girl six or seven, I believe, how her day at school was.  My classmate’s response was the kind of simple, non-detailed answer children are apt to give.  The mother said, “That answer is non-responsive to the question.”

It is good to remember, as Professor Lawrence Krieger says, that to think like a lawyer is “a legal skill but not a life skill.” It can be hard not to bring to our daily life situations the same thought processes in which we have been inculcated and with which we earn our living.  In fact, it probably requires as much discipline as we used in learning those processes, if not more.  I can think of innumerable occasions when I have been told by people close to me that I was “using that lawyer-speak again.”  And they weren’t meaning that as a compliment.

Then-Assistant Dean Meg Gaines once wrote in a student newsletter when I was a law student at the University of Wisconsin – Madison that “law school trains us to stay in our heads – in our rational minds.”  But, she added, “good relationships necessitate a broader consciousness,” and it was “integrating . . . our whole selves” that made us “better professionals and better people.”  I remember that newsletter article well, and I remember where I was standing in the law school when I first read it.  I can’t say that I have always been able to put aside the “lawyer-speak” and “lawyer think” when I have interacted with people close to me.  But with each new group of nervous but enthusiastic 1Ls in the fall, coming to my class in the very early stages of their legal training, I am reminded that it is important not to let that legal skill of “thinking like a lawyer” become a life skill.

Campbell served three combat deployments, two in Iraq and one in Afghanistan. In Iraq, he commanded Joker One, a platoon of new Marines that he trained and transformed into a fighting unit. They were assigned to Ramadi, the capital of the Sunni-dominated Anbar province where they engaged in daily house-to-house combat with insurgents. Campbell has written a memoir about his experiences with the platoon called Joker One: A Marine Platoon’s Story of Courage, Leadership, and Brotherhood.

You can read the NY Times Book Review here.  Among other accolades, Campbell was awarded the Bronze Star with Valor. I can proudly declare that Donovan and I were high school classmates in Texas. Accordingly, I can personally attest that Donovan was then (and surely remains) a man of the highest integrity, in and outside the classroom, and on and off the sports field, where he excelled as a true scholar-athlete.

One episode from the angst-ridden days of high school illustrates Donovan’s character. I fondly recall that the spring semester senior year he gave up time from track-and-field and made a self-effacing foray into “my” realm of thespian endeavors, donning Musketeer garb as a commedia dell’arte palace guard in Carlo Gozzi’s Il Re Cervo (The King Stag) and standing ramrod-straight and bellowing “Sir, Yes, Sir!” USMC-boot-camp style.

At the cast party after the last performance, which would be my final show to stage-manage in high school, I choked up and felt some silly teenage tears flow. Donovan came by and shared with genuine fraternal care and without a shred of condescension, “Peter, it’s ok. I cried after our last football game.” Picture the scene: a modern Atlas and Texas-bred lineman, who had broken many weight-lifting records at school, while still graduating at the top of our highly competitive class, nonetheless (to use a popular phrase de jour), having the “empathy” to show his own feelings and console a weepy high school drama geek. At that moment, I felt like one of William Wallace’s clansmen in Braveheart.

More seriously, I can also still remember during one Theology class Donovan offered, without any Pharisaic pretentiousness, a definition of integrity: “what you did when no one was watching.” Cf. Plato’s Ring of Gyges, perhaps?  As such, I was not at all surprised to hear Donovan comment on ethics, leadership, and his professional responsibility as a Marine lieutenant in a war zone, and now as a business leader in the marketplace. From the Harvard Business blog (with emphasis added) earlier this year:

Donovan Campbell is currently a Zone Sales Leader Designate working for Frito-Lay in Dallas, Texas. He returned to Frito in September from a year-long involuntary military recall, during which he helped Special Operations Command Central start its Tribal Engagement Initiative in Afghanistan. After four years as a Marine Corps infantry officer, intelligence officer, and sniper platoon commander, including two tours in Iraq, Campbell graduated from Harvard Business School.

In this time of the public “apologies,” spin, finger-pointing, and disingenuousness and cowardice from members of both parties, one selection from Donovan’s book (on which he commented on-air) particularly struck me:

Because of my decisions, one of my Marines had lost both of his legs. It may not have been my fault, but it was certainly my responsibility because everything that happened to my Marines was my responsibility. That’s one of the first things you learn as an officer, and if you’re a leader who’s any good at all, then as you go on you know that you always err on the side of taking too much responsibility until the weight crushes you, and then your men pick you up, and then you take still more responsibility until they need to pick you up again.

Upon reading these words, I recalled a March 2005 story on Campbell’s missions in Ramadi [see p. 10ff], in which one of Campbell’s squad leaders declared, “Most platoon commanders would have positioned themselves within the platoon…[b]ut Lt. Campbell is the kind of leader who wants to be there when the initial contact is made, so he leads from the front. He always says that if something is going to happen, he’d rather it happen to him than to his guys.” I can earnestly hope that Marines, such as my brother-in-law Pfc. J.H. Bascom, serve under such “servant-leaders,” as Campbell so termed his office in the NPR interview.

I also wonder what would happen in the worlds of law, business, politics (e.g., past and present administrations), organized religion (e.g., some US Catholic bishops), et cetera, if those in positions of authority erred on the side of taking more, rather than less, responsibility for the consequences of their decisions and actions, even when they are not personally at fault. I audaciously hope for more servant-leaders like Donovan.

A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.

Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.

Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,” the opinion explains.

“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”

As Legal Blog Watch noted,

As a general matter, lawyers cannot use third parties to circumvent ethics rules. So what made this lawyer believe he could do this? As it happens, the lawyer offered a novel argument. He argued that asking a third party to friend a witness is no different from the practice of videotaping the public conduct of plaintiff in a personal injury case. The Committee, however, didn’t buy it:

In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.

Ultimately, the Committee found that the lawyer’s efforts to use a third party to friend a witness violated various ethics rules prohibiting fraud and deception because the effort to friend the witness would be done with deceptive intent.

Although discovery was not permitted in this case, there are clear lessons here for our clients and for ourselves in what we post on Facebook or My Space and whom we let on our pages.  These issues are only going to increase as the next generation of clients will have years of information posted on their social networking sites.

Cross posted on Indisputably.

This is especially true for civil actions; at least in criminal actions an attorney can be appointed for an indigent client.  Civil representation for disadvantaged clients, in contrast, is often unaffordable.  When they can afford it, the lawyer is usually one whose entire client base is barely able to afford any fee.  Such attorneys mean well but be struggling with humongous case loads and limited resources.  My basic legal processes are infeasible for them, especially a thorough investigation or discovery.  While trying to help so many in need, they may be unable to provide any client with truly competent or adequate representation. 

Legal clinics (such as our own venerable Marquette Volunteer Legal Clinic) try to fill the gap, but often such clinics can only offer advice and direction.  They cannot or do not provide representation.

Against this backdrop, the ABA House of Delegates has considered and rejected changes to Model Rule 6.1 that would require lawyers to provide at least 50 hours of pro bono work per year, with a relatively cheap hourly buy-out.  There are of course, always mechanistic complaints: how would compliance be recorded? how would the requirement be enforced? what would the penalty be?  These can be worked out.

The real problem seems to be other complaints that are more philosophical.  What can a lawyer accomplish in 50 hours per year?  Would forced-labor representation be substandard?  Shouldn’t lawyers be able to avoid practicing in skill-areas they don’t want to practice in?  And why are we picking on lawyers?  Do doctors or plumbers have to do pro bono work?

To the last question the reply is that plumbers and other skilled trades are not often participants in processes that kick someone out of their home (evictions, foreclosures, etc.) or take someone’s children away.  Lawyers are.  The consequences of lawyers’ activities are often far more significant than a plumbing problem.  And though doctors don’t always use the term “pro bono”, most do work with indigent patients.  Further, doctors do not monopolize the health care system like lawyers monopolize the legal care system.  There are many non-physician medical professionals who do come to the aid of the indigent: nurses, LPNs, physician assistants, EMTs, midwives, doulas, physical therapists, occupational therapists, counselors, visiting nurses, nurse practitioners, orderlies, etc, etc. We pick on lawyers because, with only a few exceptions, no legal care occurs without a lawyer on the clock.  If lawyers don’t do legal pro bono work, who would?

Regarding the quality of a lawyer’s work when forced unwillingly into a legal matter, I note that this is a good description of what a juror does.  Jurors are “civilians” usually without any formal legal training, who are forced to participate unwillingly in legal matters, and on whom we place the ultimate burden of decision.  Yet we expect jurors to perform their imposed duties properly; so why should lawyers in similar situations be recipients of great sympathy?  The Rules of Professional Responsibility should bind lawyers even in pro bono cases.

The strongest argument against the oft-rejected ABA rule is that, except for really trivial cases, even the best lawyer will not often contribute much value in 50-hour annual increments.  To bring a complex case to completion would require a bucket-brigade of lawyers which would be very inefficient.  So I have a different proposal.  (Don’t I always?) 

Throw the names of all locally practicing lawyers into a hat (metaphorically, of course).  When a local, indigent client needs civil or criminal representation, someone (a player to be named later) picks a lawyer’s name out of the hat, and that lawyer gets that case until it’s done.  Just like jurors, lawyers would be drafted for whole cases.  Just like jurors, lawyers would be drafted for a single case at a time.

Here I add a feature inspired by a Civil War draft law: If you don’t feel you are competent on the relevant area of law or cannot afford to give up your billable time for your drafted case, you can find a replacement lawyer.  If your substitute insists on compensation for time and expenses, then, after suitable negotiations, you pay.  But you forego the right to second-guess your substitute’s strategic or tactical decisions.

 Obviously, a lot of details about this proposal would need fleshing out, but this system could be fair, if properly designed.  It would result in a lawyer taking an entire pro bono case through to completion (no bucket-brigade), and provide a way for independent or socially conscientious lawyers to be compensated by other lawyers who don’t want to participate in pro bono cases but are able and willing to support those who will. 

Earlier this week, the Wisconsin Court of Appeals issued an interesting decision involving remedies for the discharge of in-house counsel in violation of the Equal Pay, Act, Title VII of the Civil Rights Act of 1964, and the Wisconsin Fair Employment Act. Sands v. Menard, Inc., involved a claim by a lawyer terminated from her position as vice president and executive general counsel of the Wisconsin-based building supplies company. The lawyer had claimed that she was the victim of gender-based pay discrimination. The matter was submitted to arbitration, and Menard was determined to have violated the lawyer’s rights in underpaying her and retaliating for her complaint.

The arbitration panel awarded the lawyer compensatory and punitive damages and also ordered reinstatement, a remedy that neither party sought. In upholding the reinstatement order, the court provided the following analysis:

Menard does not dispute that reinstatement is a remedy under the Equal Pay Act and Title VII and that neither of those acts provide[s] an exception for in-house attorneys.  Further, Menard points to no governing case law stating reinstatement is unavailable as a remedy for wrongfully terminated in-house attorneys under the Equal Pay Act or Title VII.  Simply put, the Equal Pay Act and Title VII provide substantial authority for the arbitrators’ award.

Menard essentially asks that we create law stating reinstatement is not a remedy for in-house attorneys under the Equal Pay Act and Title VII when the employer contests reinstatement or when the attorney might be violating the rules of professional conduct after reinstatement. This is inconsistent with the standard of review.  We cannot conclude the arbitrators manifestly disregarded law that was nonexistent at the time of the arbitrators’ decision.  Additionally, we note that Menard fails to explain how Wisconsin law regarding clients’ rights to choose their attorneys, or the rules of professional conduct, could negate the remedies of wrongfully terminated employees under federal law. (Footnotes omitted.)

It should be noted that lawyers are expected to withdraw from representation when discharged by their clients, at least in circumstances in which permission of a tribunal is not required. SCR 20:1.16(a)(3). This does not necessarily deprive the lawyer of contract and tort claims arising from the discharge, but it does make reinstatement a peculiar remedy. The court’s footnote 4 may tell us something about the court’s thinking:

 We further note that the rules of professional conduct apply to attorneys, not employers. See SCR 20:Preamble (2008). Therefore, while the rules may limit the utility of a reinstatement award for an attorney who may have to decline or withdraw from representation, they do not prohibit an employer from reinstating an attorney.

My first reaction is to ask, what is the sound of one hand clapping? My second reaction is to understand the court to be saying that the employer must tender the position to the lawyer and the lawyer must then decline it. Makes for an interesting ritual.

One final note: My search of the lawyer directory on the State Bar of Wisconsin website did not find any Wisconsin lawyer named Dawn M. Sands, who was the plaintiff in the case. Is Wisconsin lawyer law even applicable? (Probably.)

1.  Thou Shall Keep Track of One’s Time, Whilst Not Waiting Until the End of the Month to Write Them Down.

2.  Thou Shall Scribble Thy Fees on Papyrus and Present Them to Thy Client

3.  Thou Shall Not Overbill, Nor Double Bill, Nor any Multiples Thereof

4.  Thou Shall Not Bill Your Client for an Hour of Work Because You Thought About the Case for Two Minutes in the Shower

5.  Thou Shall Not Runneth The Meter for Additional Billing Hours

6.  Thou Shall Not Wing It; Thou Shall Have and Hold to Thy Billing Guidelines

7.  Thou Shall Not Recycle Thy Work as if It Had Been Born Anew

8.  Thou Shall Return Thy Clients’ Phone Calls

9.  Thou Shall Not Sue Thy Clients for Unpaid Bills (Unless You Want to be Countersued for Malpractice)

10.  Thou Shall Not Sell Thy Soul to a Firm with Billing Requirements that Do Not Meet Thy Personal Expectations for a Work and Family Balance

Are we missing any of your favorite commandments?  What else should we make sure our students think about in order to avoid the messiest of conflicts, those with clients?

I’m not stalking Mr. Samis through the Blog, but his post on the demands of confidentiality when a client has disclosed evidence of a past crime reflects a timeless ethical dilemma. Here’s another good one.

Assume that your client has told you that he committed the crime. You now can’t call him to deny it, but you were probably never going to do that anyway. How else should that impact the way in which you present a defense?

Say there is an eye witness who claims (as you now know, accurately) to have seen him do it? Do you point out the weaknesses of her testimony on cross? That one may be easy; the prosecution must prove its case. But do you go after her credibility? Suggest she is lying? Conjure up a motive for her to do so? Should you call witnesses other than your client to attempt to suggest what you know to be a false version of the crime?

I don’t teach ethics and had very little experience as a criminal defense lawyer.  Even if the trial strategy is permitted, is it right? What would be the cost of restricting it?

It didn’t take long to discover that the law governing lawyers, while usually ethical, occasionally requires behaviors that cannot possibly be squared with any ethical system.

The one that stands out most is Rule 1.6 in the Model Rules of Professional Responsibility.  In Wisconsin, this Rule is codified as SCR 20:1.6 Confidentiality.

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).

[paragraphs (b) and (c) omitted.]

The rationale behind the Rule is that effective representation depends on the client’s candid communication with his or her attorney, which depends on trusting the attorney to keep the client’s confidences.  Everyone has a right to fair treatment by the law ensured by effective representation.  I get that, and at first glance, there is no apparent ethical dilemma.  If clients tell their attorneys about ongoing or impending criminal acts, paragraphs (b) and (c) require or allow reporting.

But deeper reflection in class drew out a serious ethical dilemma from tragic cases in which lawyers are given information about past crimes, which does not fit the given exceptions and withholding of which is difficult to justify.  The most tragic cases are child killers whose victims have not been found.  When the killers tell their attorneys where the bodies are, can the attorneys be compelled tell the families or the police?  From several cases, the answer is ‘No’.

Prof. Schneider put it to us: what would we do if our client tells us he’s murdered people and where their bodies are?  Would we look for the bodies to verify our client’s statements?  If we found them, would we tell anyone?  Would we tell the families of missing children where their bodies were if we knew?  My class debated this at length.  For some, their obligation to their client trumped all other considerations.  For others, the obligation to not assist their client’s concealment of his victims was decisive.  Many students said they’d “find a way” to help the police find the bodies anonymously.

“Tragic cases make bad law”.  But in this situation, bad law makes for tragic cases.  Lawyer trustworthiness and client confidentiality are necessary.  But what kind of coherent ethical system mandates trustworthiness and at the same time excuses acts or omissions which inflict avoidable harm on innocent persons?  Rule 1.6 might be ethical in typical cases, but its limited exceptions may demand behaviors that are not ethically defensible, allowing (if not requiring) lawyers to assist clients in the on-going infliction of suffering and loss on innocent persons–-which I think fairly describes the horror of not only losing a child, but not even knowing if they are dead or alive.

And who benefits from the absoluteness of this rule?  Only criminal defense clients who have actually committed crimes, and their zealous attorneys.  I understand that the law must regard all defendants as presumptively innocent, but that is a legal fiction.  In fact, sometimes the client is actually guilty.  If your client tells you where the bodies of their victims are, then the client is actually guilty.  We all benefit from the assurance of lawyer-client confidentiality, but most of us don’t have bodies or stolen loot to conceal.  Only the actual guilty do.

Requiring lawyers to disclose to the police the locations of cadavers and stolen property does not adversely affect the representation of actually innocent clients, only the actually guilty.  If a client withholds information relating to a criminal act the client actually committed, and that withholding compromises the effectiveness of the representation, then who is harmed?  Only an actually guilty client.

Ensuring that a client is treated fairly by the criminal process regardless of what the client is charged with is not the same as ensuring acquittal regardless of what the client actually did.  I am not untroubled by my argument above, but if someone’s interests must be sacrificed in the pursuit of justice, why not those of the guilty who are hiding bodies or loot?

Most of the term I have chewed on this problem, wondering what a workable and fair solution would look like.  Then my LGL course dropped one in my lap.

Rule 3.4. Entitled “Fairness to opposing party and counsel,” SCR 20:3.4 among other things codifies the obligation of lawyers to disclose evidence given to them by their clients.  In one case, State v. Olwell, 394 P.2d 681 (Wash. 1964), an attorney was sanctioned for not turning over a weapon given to him by his client.  The rationale is that if the attorney holds on to the evidence, there is no chance the police would find it short of searching the lawyer’s office.  Under the rule, the lawyer has turn it over.  In exchange, the Court held, the prosecution must make every effort to conceal from the jury who gave them the weapon.  Similarly, under People v. Meredith, 631 P.2d 46 (Cal. 2981), a lawyer gave similar evidence to the police and withdrew without incurring sanctions.  In the District of Columbia, such evidence can be turned over to the D.C. Bar counsel who then gives it to the police without revealing where they got it.

There is the basis of an answer.  Require attorneys given information about evidence of past crimes in the form of cadavers or stolen property to turn that information over to the police or a Bar Counsel and withdraw.  The source of the evidence must be protected by the Bar Counsel or the prosecutor depending on how the process is structured.

Compare this with the sting operation carried out by a Madison, Wisconsin, criminal defense lawyer against the fifteen-year-old who accused his client of repeated sexual assaults beginning when the boy was nine years old.

The lawyer believed that the boy was lying and thought that the boy’s computer might contain evidence of the child’s independent interest in child pornography. The lawyer was concerned that the police investigator would not objectively seek and examine such evidence and that the boy might destroy evidence on his computer if given any warning.

The lawyer decided to retain a private investigator to trick the child and his mother into surrendering the boy’s computer and any evidence it might contain.

The sting consisted of offering, as part of a bogus research project, to exchange the boy’s computer for a new computer, free of charge. The boy agreed, and the lawyer discovered that the boy’s computer did indeed contain pornographic images.

Notwithstanding the computer evidence gained from the sting operation on the child witness, the client was found guilty of multiple felonies, including repeated sexual assault of the same child and possession of child pornography.

After the Dane County District Attorney complained to disciplinary authorities about the deception involved in the lawyer’s sting, the Wisconsin Supreme Court dismissed the misconduct charges against the lawyer. The court appeared to accept the referee’s characterization of the investigation as lawful and noted that the current ethics rule in Wisconsin, SCR 20:4.1, provides that “a lawyer may advise or supervise others with respect to lawful investigative activities,” even if deception is involved.

Regrettably, the court has chosen not to publish on its website its order dismissing the complaint (Office of Lawyer Regulation v. Hurley, No. 2007AP478-D, 2/11/09), presumably pursuant to SCR 22.23(1), which states: “With the exception of the supreme court’s disposition of a private reprimand or dismissal of a proceeding, the supreme court’s disposition of a proceeding under this chapter shall be published in an official publication of the state bar of Wisconsin and in the official publications specified in SCR 80.01.  A party may file a request to publish a dismissal of a proceeding.”

Additional information on the case can be found in a Wisconsin State Journal article, an account published in Isthmus, and in the ABA/BNA Lawyers’ Manual on Professional Conduct (25 Law. Man. Prof. Conduct 115).

Apparently, Fish & Richardson represented, until recently, headset maker Aliph in its regulatory work out of Fish’s D.C. office.  Aliph is now suing to have Fish & Richardson disqualified from representing a direct competitor against it in a patent case.  As the Recorder explained:

Aliph Inc. moved to disqualify Fish from representing Bluetooth rival Plantronics in the patent case two weeks ago, arguing that the firm shouldn’t be allowed to sue its own client or get out of the mess by suddenly disowning Aliph at 8:30 p.m. the night before . . . .

Aliph says in court papers that it hired the firm to do FCC regulatory work in May. In December, the company got a call from the relationship partner, Terry Mahn of the firm’s Washington, D.C., office, trying to get Aliph’s consent for Fish to represent an adverse party in litigation. Fish wouldn’t identify the party or the matter, according to Aliph, and the company refused to waive the conflict.

Following further unsuccessful entreaties, Mahn sent an e-mail to Aliph on Jan. 14 saying, “Unfortunately, firm management has now weighed in and has directed me to inform you that we can no longer represent Aliph on regulatory matters without Aliph’s consent to the firm being adverse on IP matters unrelated to our regulatory work, as was explained in our initial engagement letter.” The next day, Fish attorneys from the firm’s Dallas office filed the patent infringement suit for Plantronics against Aliph in the Eastern District of Texas. The suit claims that the earbuds used for Aliph’s Jawbone Bluetooth headsets infringe on a Plantronics patent.

Diane Karpman, an ethics lawyer with Karpman & Associates, said what Fish is accused of doing took a lot of “chutzpah.”

“It’s breathtaking that a firm would disengage at 8:30 and then sue them in the morning,” Karpman said. “It would seem to be a pretty valid argument that they were working on this beforehand.”

There are a number of interesting things about this case.  First, I love how the partner responsible for attempting to get consent to client conflicts is called the “relationship partner.”  Are other partners off the hook for managing relationships now?  Is that just a nicer way than saying conflicts partner or ethics counsel?

Second, it also makes me wonder about what is going on inside the firm.  Did the D.C. partners get a vote on which client to keep?  Is this a sign of the D.C. office versus the Dallas office and showing who has more power?  I am curious to hear what happens to firms after these kinds of conflicts among clients in which one partner clearly exerts power over another to keep and/or acquire clients at the expense of other partners in the same law firm.

Cross posted at Indisputably.

As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover.  We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt.  And what was the role of lawyers in all this?  Financial transactions of this sort inevitably involve lawyers at some stage.  Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this.  And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.

Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients.  To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial.  But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it?  Assume further that the fraud is on-going and not a past act.  What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)?

Wisconsin is one of just two states (New Jersey is the other) that impose a mandatory duty on lawyers to prevent continuing fraud by a client.   Specifically, SCR 20:1.6(b) provides as follows: “A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another” (emphasis added).     One authoritative legal source that discriminates between “criminal” and “noncriminal” fraud (an interesting distinction itself), reports the following: only 2 jurisdictions (Wis and NJ) require mandatory reports, 24 leave it to counsel’s discretion, 23 forbid disclosures, and 2 require the lawyer resign!  (The tally for “criminal fraud” is equally enlightening: only 4 require disclosure, 40 permit it at counsel’s discretion, and 7 forbid it.)

The scope of the Wisconsin lawyer’s mandatory duty to prevent client fraud is uncharted.  The rule has been part of Wisconsin law since the adoption of the present rules.  Several years ago the supreme court and a distinguished committee implemented a number of significant revisions but left SCR 20:1.6(b) untouched.  Unclear is when the duty is triggered.  When does a “risky investment” become a fraud?  What exactly must the lawyer know, or be aware of, before she is required to act?  How much monetary damage constitutes a “substantial injury” to a “financial interest”?  Does a violation expose the lawyer only to professional discipline, or might it open the way to a tort claim against both the lawyer and the law firm?

Case law is sparse, which may be a good or bad thing.  SCR 20:16(b) reared its head – sort of – several years ago in a case out of LaCrosse.  Lawyer K represented “Randy,” a tavern owner, on several ordinance violations involving Randy’s bar.  One day Randy’s bar burned down.  When Lawyer K commiserated with Randy about this misfortune, Randy disclosed that he had intentionally set the fire in order to collect on the insurance policy.  Lawyer K promptly told Randy that he could not collect the insurance because this would constitute still another crime – past arson + future insurance fraud = big trouble for Randy.  Shortly thereafter, Lawyer K memorialized this same information in his “Dear Randy” letter, which also warned Randy that SCR 20:1.6(b) obligated Lawyer K to notify others to prevent any future fraud from occurring.  The letter ended by terminating Lawyer K’s representation of Randy.  Sometime later, Lawyer K learned that Randy had disregarded his advice and collected part of the insurance proceeds.  To protect against further fraud, Lawyer K notified the police and prosecutors of Randy’s crimes.  The disclosure included the “Dear Randy” letter which recounted Randy’s confessions.  Randy moved to suppress the evidence on grounds that (former) Lawyer K had breached Randy’s privilege and disclosed confidences without Randy’s consent.  The trial court disagreed and refused to suppress the evidence.  In a terse, poorly crafted, one page unpublished per curiam opinion, the court of appeals affirmed.  Without analyzing (or citing) SCR 20:1.6(b), the court validated the disclosure instead under the crime-fraud exception to the lawyer-client privilege, which is silent as to disclosure.   For the curious reader, the opinion appears here.   

In some respects, Randy’s case was an easy one.  Randy clearly intended to commit insurance fraud; this was not just a risky or murky transaction.  But remember that Lawyer K “fired” Randy at the end of the “Dear Randy” letter.  Does SCR 20:1.6(b) apply to former clients?  (Here it should be mentioned that lawyers have “discretion” to disclose client misconduct, but that’s a different story.)   And even where disclosure is mandatory, how precisely does the rule regulate the scope of disclosure?  What is “too much”?  Should it monitored by a court?  As the far more complex tale of financial misconduct unfolds, there may be provocative issues of what lawyers may have known of their clients’ actions and whether they should have acted to protect investors or third parties under SCR 20:1.6(b).  One suspects that there may be other, far more mendacious “Randys” out there.  

Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marq. L. Rev. 1 (2008) (SSRN version here).

Scott A. Schumacher, MacNiven v. Westmoreland and Tax Advice: Using Purposive Textualism to Deal with Tax Shelters and Promote Legitimate Tax Advice, 92 Marq. L. Rev. 33 (2008).

Michael W. Loudenslager, Giving Up the Ghost: A Proposal for Dealing With Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for Such Attorneys, 92 Marq. L. Rev. 103 (2008).

Barbara O’Brien & Daphna Oyserman, It’s Not Just What You Think, But How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making,  92 Marq. L. Rev. 149 (2008).

Joan Shepard, Comment, The Family Medical Leave Act: Calculating the Hours of Service for the Reinstated Employee, 92 Marq. L. Rev. 173 (2008).

Charles Stone, Comment, What Plagiarism Was Not: Some Preliminary Observations on Classical Chinese Attitudes Towards What the West Calls Intellectual Property, 92 Marq. L. Rev. 199 (2008).

Congratulations to the student editors of Volume 92 for the successful completion of their first issue!

I found it moving to hear another human being discuss his struggle with these issues of conscience so directly, forthrightly, and genuinely. If you want to hear Lt. Col. Vandeveld’s discuss these events in his own words, you can watch this video at the BBC website. The BBC article reports the events this way:

It was one case in particular, that of a young Afghan called Mohammed Jawad, which caused most concern.

Mr Jawad was accused of throwing a grenade at a US military vehicle.

Col Vandeveld says that in a locker he found indisputable evidence that Mr Jawad had been mistreated.

After Mr Jawad had tried to commit suicide by banging his head against a wall at Guantanamo, Col Vandeveld says that psychologists who assisted interrogators advised taking advantage of Mr Jawad’s vulnerability by subjecting him to specialist interrogation techniques known as “fear up”.

He was also placed, Col Vandeveld says, into what was known as the “frequent flyer” programme in which he was moved from cell to cell every few hours, with the aim of preventing him sleeping properly, and securing a confession.

A devout Catholic, Col Vandeveld found himself deeply troubled by what he discovered.

But the classified nature of his work meant he was unable to share his growing doubts with friends and family.

As a result, he took the unusual step of emailing a Jesuit priest called Father John Dear, who is a well known peace activist.

In his email, Col Vandeveld talked of having “grave misgivings”.

Father Dear was initially unsure if the email was serious and fashioned a quick reply.

“I sort of didn’t believe it. But on the off chance he was a military prosecutor I wrote back and said ‘quit’.”

Col Vandeveld says his jaw dropped when he read the email, adding: “I lived in dread of that answer.”

But eventually he did resign and has chosen to speak out about what he saw, giving the BBC his first interview.

“I never suffered such anguish in my life about anything,” he says, looking back over the period.

“It took me too long to recognise that we had abandoned our American values and defiled our constitution.”

The Jesuit priest from whom Lt. Col. Vandeveld sought advice, Father John Dear, was a panelist at the keynote Mission Week event this past February at Marquette.  Another BBC video clip shows Father John Dear discussing his email exchange with Lt. Col. Vandeveld.  Father Dear also discusses the events in more detail in reporting for the National Catholic Reporter.

I guess with this post I am failing to heed Andrew Golden’s advice not to give away my political beliefs on the blog.  I will admit that I share Lt. Col. Vandeveld’s conclusions about, for instance, what went on in Mr. Jawad’s case.  In fact, I do not think it would have been much of a dilemma for me.  I could not have been involved in a prosecution under those circumstances.  

But I do think that this post has to do with the law, regardless of one’s political beliefs or position about the interrogation techniques used at Guantanamo.  Isn’t it troubling a prosecutor for our federal government, in an important prosecution, felt he had to go outside of the law to resolve the crisis, that somehow the law failed to provide the answer to the moral dilemma he found himself in?  Isn’t the law supposed to encode our moral values about such things, about torture, about due process?  If not, shouldn’t it?

I have often taught negotiation ethics using Richard Shell’s division of people: the idealists, the pragmatists, and the poker-players. The poker-players assume that everyone who negotiates views it as a game: we all know that bluffing and puffing are part of the system -– caveat emptor. The pragmatists think that lying is generally unwise -– you’ll be found out, it’s not worth it, etc. The final school is the idealists -– lying is wrong and you shouldn’t do it.

It is wonderful when you can find a real-life example of idealistic telling-the-truth, and so I connect here to a lovely story about J.P. Hayes, a golf player. He played a nonconforming ball for a single hole of the second stage of the PGA Qualifying Tournament. He realized it more than a day after the “violation,” called it on himself, and disqualified himself from the tournament. This has, according to Yahoo, some severe career-altering effects down the line.

Now, the easy move here would be to either do nothing or blame the caddy. Hayes rose above both those temptations, putting all the blame on himself and asserting that everybody else on the PGA in his shoes would have done the exact same thing. We’ll never know, but let’s hope so.

Also, Hayes already has more than $7 million in career earnings, so it’s not like he’d consigned himself to another year working the counter at the Quik Stop. But still, knowing you’re taking yourself out of the running for a year of career stability and wealth takes some serious situational ethics.

But, as J.P. puts it, at least he can sleep at night. What would you have done?

Cross posted at Indisputably.