Professor Michael W. Loudenslager of Appalachian School of Law has ventured into the thorny thicket of affirmative duties to disclose in his provocative article, 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). The crux of the issue is whether behind-the-scenes drafting of one or more litigation documents for a pro se litigant, by a lawyer who does not appear in the matter nor otherwise disclose her involvement, constitutes misconduct. The principal concern is whether the court and adversary are likely to be misled inappropriately by the nondisclosure. The issue arises frequently because so many matters must go to court, from collection cases to divorces to traffic offenses, and the cost of full representation is either beyond the reach of many litigants or is, in their judgment, not cost-effective. The authorities are divided as to whether disclosure should be required. Loudenslager does a fine job of taking us through the arguments and offers a solution of his own. It makes for engaging and thought-provoking reading.
I’ve just received my brand-new, hot-off-the-presses issue of the Marquette Law Review, which has several articles I am looking forward to reading. Here are the contents:
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!
In a recent interview with the BBC, former Guantanamo prosecutor Lt. Col. Darrel Vandeveld discusses how the conflict he perceived between his military duties and his religious beliefs (as well as his beliefs about the requirements of the United States Constitution) created what the BBC terms a “profound moral crisis,” one that eventually led to his resignation.
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.
So . . . if no one knew when you lied, would you do it? Would you lie to save money? Would you lie to save your client money? Would the amount of money matter?
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.