O’Hear to Chair the Federal Nominating Commission

Since 1979, Wisconsin’s senators have used some form of what they term a “Federal Nominating Commission” to recommend individuals for vacant federal judgeships and U.S. Attorney’s positions. (One can see the current charter from the senators here.) Whether this approach is good public policy is a worthy question, but not my topic here.

Rather, I wish to make an observation concerning leadership of the Federal Nominating Commission: Where there is a vacancy, the charter calls for the dean of the law school in the federal judicial district (Marquette in the Eastern District and the UW-Madison in the Western District) or his designee to chair the commission. I have thus chaired the commission on occasions in the past.

With respect to the current vacancy in the U.S. Attorney’s position in the Eastern District, occasioned by the departure of Steve Biskupic, L’87, for private practice, I this week exercised my option to delegate my responsibilities. This occurs from time to time (e.g., the late Dean Howard B. Eisenberg tapped our colleague, Professor Peter K. Rofes, on one occasion in the 1990s, and a similar thing has occurred on occasion in the Western District).

Specifically, I have turned to my colleague, Michael M. O’Hear, Professor of Law, Associate Dean for Research, and (least relevantly) managing editor of this blog. My principal reason, besides other demands on my attention, is my belief that Professor O’Hear — a leading legal academic in the area of criminal sentencing — is unusually well qualified to help guide this search.

I hope that Professor O’Hear will consider using this blog as one of the means of disseminating information about the Federal Nominating Commission’s important undertakings. In all events, the commission’s recommendation of four to six individuals to serve as the U.S. Attorney in Milwaukee is due to the senators under the charter near the end of March.

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Virtual Book Club

We add a new feature to the Marquette Law School Faculty Blog this semester: a virtual book club.  Over the course of the semester, participants will read and post about a particular book.  The book this semester will be The Invisible Constitution by Laurence Tribe (left).  From the publisher’s description:

As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings.

In The Invisible Constitution, Tribe argues that there is an unseen constitution — impalpable but powerful — that accompanies the parchment version. It is the visible document’s shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it.

Joining me in commenting on the book will be: Rebecca Blemberg, Bruce Boyden, Rick Esenberg, Melissa Greipp, Gordon Hylton, Julian Kossow, Mike McChrystal, Chad Oldfather, and Phoebe Williams.  I look forward to reading what my colleagues will have to say over the course of the semester.

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Client Fraud and the Lawyer

 

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)?

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