Category Archives: Law: Ethics

Did AG Eric Holder Commit Perjury? Whose Head Should Roll?

David Kravitz’s Wired article, How Obama Officials Cried ‘Terrorism’ to Cover Up a Paperwork Error begins like this:

After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error.

FBI agent Kevin Kelley was investigating Muslims in the San Francisco Bay Area in 2004 when he checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list.

What happened next was the real shame. Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.

The article includes a link to Attorney General Eric Holder’s declaration in Ibrahim v. DHS. It’s pretty awful — even worse than the article makes it sound. Here are the last two paragraphs (emphasis added):

16. On September 23, 2009, I announced a new Executive Branch policy governing the assertion and defense of the state secrets privilege in litigation. Under this policy, the Department of Justice will defend an assertion of the state secrets privilege in litigation, and seek dismissal of a claim on that basis, only when necessary to protect against the risk of significant hann to national security. See Exhibit 1 (State Secrets Policy),§ l(A). The policy provides further that an application of a privilege assertion must be narrowly tailored and that dismissal be sought pursuant to the privilege assertion only when necessary to prevent significant harm to national security. !d. § 1(B). Moreover, “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States Government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” !d. § 1(C). The policy also establishes detailed procedures for review of a proposed assertion of the state secrets privilege in a particular case. !d. § 2. Those procedures require submissions by the relevant Government departments or agencies specifying “(i) the nature of the information that must be protected from unauthorized disclosure; (ii) the significant harm to national security that disclosure can reasonably be expected to cause; [and] (iii) the reason why unauthorized disclosure is reasonably likely to cause such harm.” ld § 2(A). Based on my personal consideration of the matter, I have determined that the requirements for an assertion and defense of the state secrets privilege have been met in this case in accord with the September 2009 State Secrets Policy.

I declare under penalty of perjury that the foregoing is true and correct.

I think someone should lose their job over this. Perhaps that someone is the person who misinformed the Attorney General as to the facts of the case, perhaps not. In any event, Attorney General Eric Holder owes us all an explanation as to why that someone is not him.

Posted in 9/11 & Aftermath, Law: Ethics, Law: Right to Travel | 4 Comments

Legal Proceedings So Weird We Need Hunter Thompson to Cover Them

The first story, about proceedings in District Court in Tampa, FL was pretty weird and blackly funny, as lawyers scrambled to disassociate themselves with the proceedings in Porn trolling case thrown out for “attempted fraud on the court”.

Now Ars Technica ups the ante with the Minnesota sequel, Man charges porn trolling firm Prenda Law with identity theft: Says firm listed him as the CEO of a shell corporation without permission.

Hunter Thompson could really have done something with this material.

Posted in Law: Copyright and DMCA, Law: Ethics | Leave a comment

Justice Thomas’s Disclosure Problem

Crooks & Liars goes to town on the unfolding Supreme Court disclosure scandal: Clarence Thomas “Forgot” 20 Years of Disclosure? Really?. The author argues that there might even be felony exposure under 18 USC § 1001. I’m a little dubious, although it’s not the sort of law I do so I welcome comments from those who know this stuff.

And even if it’s theoretically right, there’s surely about a zero percent chance that the Obama Justice Department would act, or that the Tea Party House would indict.

Although I have to say that this all reminds me of the classic Steve Martin routine

(Apologies for the silly cartoon version, but it is all I could find on YouTube.)

Posted in Law: Ethics, Law: The Supremes | Leave a comment

‘Bar application denied for inability to pay law school debt’

It sounds horrible, and it almost is.

A former student directs me to this article in the Minnesota Lawyer, Bar application denied for inability to pay law school debt, which in turn leads one to the Ohio Supreme Court opinion in In re Application of Griffin, Slip Opinion No. 2011-Ohio-20.

The facts are almost as stated in the hyperventilating article: The applicant failed the bar three times, and applied to take it a fourth time. He passed the character and fitness scrutiny of his local bar association (often a formality), but the Board of Commissioners of Character and Fitness overruled that decision. The Board said that the applicant’s financial circumstances called into question his fitness to be a lawyer.

What seems to have bothered the Board is not simply the applicant’s debt but his failure to deal with it responsibly. Mr. Griffin had a large but hardly unheard-of $170,000 in student loans, of which $150,000 was for law school. But he also had $16,500 in credit card debt, and that debt has been delinquent since 2008; one creditor even has obtained a default judgment against him. He was working part-time at the Public Defenders Office, at $12/hour, hoping to land a full-time job if he passed the bar. Meanwhile, the credit card debt wasn’t being paid, and the strategy he planned was to consider declaring bankruptcy even though that would only clear up the credit card debt and not the student loans, which are not discharged in bankruptcy. That said, he hadn’t actually pulled the trigger on the bankruptcy, so the debt was still hanging over him and presumably accruing penalties and interest.

The article spins all this as the court deciding that law school debt keeps the applicant from becoming a lawyer, or that his decision to work part time at legal aid (in hopes of a permanent post after passing the bar) instead of getting a better paying, maybe non-legal, job, is the source of the adverse decision. How terrible to count this public-spiritedness against him!

Not so fast. The guy defaulted on the credit card debt two or more years ago. He didn’t work things out with the bank; he let one bank get a judgment against him. Lawyers quite often get into trouble by mishandling client funds either through inattention or through over-optimism that if they just borrow a bit from the client fund to tide them over, they can put it all back next week…. So while I don’t see this result as compelled, I can’t say the court is wrong to treat the credit card debt issue as a red flag. (The three bar failures don’t speak all that well for his organization either. Anyone can fail the bar once. Twice is bad.)

And note too that the Ohio Supreme Court doesn’t say Mr. Griffin can never attempt the Ohio bar again. They basically tell him to go clean up his affairs and then get back to them. That’s pretty mild.

Yes, passing the bar and getting a full time job as a lawyer would be one way to do that, and this decision blocks that option, so there is a Catch-22 element to the court’s offer. But I still don’t think it is unreasonable under the circumstances. Despite the Minnesota Lawyer’s take on the story.

Posted in Law: Ethics | 12 Comments

Is Academic Advantage a Scam?

Is Academic Advantage a Scam? Opinions may differ. You be the judge (assisted by Boing Boing and Google).

If correctly reported, their lawyers’ actions certainly appear to leave much to be desired.

Boing Boing has been on the receiving end of one or two stupid legal threats in our day but this one from the firm of Lazar, Akiva & Yagoubzadeh takes the cake, the little cake topper, the frosting and all the candles, as well as the box and the cake-stand and the ornamental forks.

Note too this comment about that by Jonathan Zittrain, not to mention other fine comments over at Boing Boing.

Update (1/21): Seems Academic Advantage fired their lawyers. See Company Fires Law Firm Because of Firm’s Unfounded Legal Threat on Company’s Behalf.

Posted in Internet, Law: Ethics | 3 Comments

Client-Driven Racial Quotas

Orin Kerr points us to an article at law.com:

In a pact brokered by the New York County Lawyers’ Association, more than 60 law firms have agreed to tell their corporate clients the composition of assigned legal teams by race, gender, ethnicity and sexual preference.

For several years, clients have asked law firms to sign statements in support of diversifying the legal profession. But with the formal agreement, firms have volunteered to put hard numbers behind their noble aspirations. According to the pact, “law firms should not object to requests by their corporate clients [to] report the number of hours devoted to the clients’ matters by minority lawyers.”

It’s nice that clients don’t want to employ either bigots or those who, even by lack of effort, have failed to overcome a legacy of discrimination.

But immediate consequences are clear, said Robert L. Haig, a partner at Kelley, Drye & Warren, one of the first large Manhattan firms to sign the agreement.

“When that number is put on the table and it’s a small number, then the great enthusiasm for diversity is a little suspect. The client might say, ‘We can’t hire you for the following year,’” Haig said in an interview. “Right then, that law firm is going to change. They’re going to do what they have to do in order to be retained again and again.”

He added, “This is economically driven, and that’s what makes it powerful.”

Haig, a former president of County Lawyers, the nation’s first bar association to admit minority attorneys, was one of about 30 attorneys who formed a County Lawyers task force on diversity. The effort was launched in 2000 and headed by Juanita Bing Newton, administrative judge of New York City Criminal Court and deputy chief administrative judge for Justice Initiatives at the Office of Court Administration.

But suppose the shoe were on the other foot? What if the clients wanted low numbers of minorities? Then we’d all be revolted. The parallel is far from perfect: excluding minorities is illegal and immoral; demanding their inclusion is legal and praiseworthy. But is the mechanism appropriate?  In general I’m in favor of people voting with their buying dollar to support suppliers whose values they share, and to avoid sellers with bad values even when they have good things to sell.

But I’m also instinctively uncomfortable with anything that smacks of racial quotas. Yet it is undeniable that law firms, especially big corporate firms, have not done everything they could to diversify. Some of the older troglodytes even seem to believe that the clients may harbor suspicions of minority lawyers.  So it’s nice to see pushback from the clients.

And yet.

[Original draft 5/13/2005.  As part of my blog redesign, I've been going through draft blog posts that somehow never made it to publication. This is one of them.]

2011: Subsequent research by one of my colleagues suggests strongly that big clients, at least, really couldn’t care less about diversity among their lawyers; big firm clients may talk a great deal in public about demanding it, but it doesn’t even show up on their general counsels’ list of important factors determining law firm choice when speaking in private.

Posted in Law: Ethics, Zombie Posts | Leave a comment

Can Lawyers Hire Folks to Pose As Law Students to Get Links to the Firm’s Web Site?

Here’s a real-life event that might make a good short-answer problem for a Professional Responsibility final exam.

Today I received an email purporting to be from a law student. The sender’s email address was [common-first-name]@edu-student-mail.org. The subject line was “Suggestion for your page [URL]” with the URL being a fairly obscure page from an Internet law seminar I gave in 1998.

Here’s the text:

Hi!

I came across your site today while doing some research on intellectual property for one of my law classes. You provide some really great resources, but on your page http://www.law.miami.edu/~froomkin/sem98/sem11.htm I tried to click on your link to http://www.eff.org/pub/Intellectual_property and it doesn’t seem to be working. I also found this page in my research which could provide similar information if you wanted to check it out :) [here followed a URL to a site advertising personal injury lawyers that I've cut out to avoid rewarding this behavior].

Best,

[First-Name Last-Name]

I responded with an email asking what law school she attended. Haven’t gotten an answer.

Suppose, just hypothetically (we have no reason to believe this at present), that the name is a fake and this was in fact an advertising message for the California PI firm sponsoring the website in the message.

Is this (hypothetical) duplicity banned by the California legal ethics code? I’m not a member of the California Bar, so I don’t know the answer to this one. A cursory glance at Rule 1-400. Advertising and Solicitation. makes me wonder if there isn’t maybe a gap in the rules.

The California ethics rules prohibit making false statements to potential clients, actual clients, opposing parties, and the courts. They also prohibit false statements to third parties about cases in which the lawyer is involved. But there doesn’t seem to be anything about hiring an agent to make a false statement to a third party (me) designed to get (let us hypothesize) accurate publicity for the lawyer, that is a link to the firm’s site.

The rules do say, among other things, that

A communication [defined as: "any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client"] or a solicitation ["any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain;"] (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public

It doesn’t seem to me that, true or false, the email I quoted above qualifies as either a “communication” or a “solicitation” under these rules. So I have to think it is not covered.

But shouldn’t sleazy lying marketing designed to promote a website be as unethical as a lie to a potential client or lies on that website?

Maybe the person who sent that email was real. But even if she is, the gap in the rules this email made me think about may be real too.

(I’d welcome enlightenment from anyone more familiar with the California rules.)

[Original draft 2/2/10.  In preparation for my blog redesign, I've been going through draft blog posts that somehow never made it to publication. This is one of them.]

12/12/2010: Never did get an answer to my email.

Posted in Law: Ethics, Zombie Posts | Leave a comment