Category Archives: Law: Ethics

Spitzer Must Go

If the facts as we currently know them are true, NY Gov. Eliot Spitzer must resign.

As a general rule, I think that office-holders who commit crimes while in office should not continue to hold that office. (I do take shockingly bold positions, don't I?) This case seems to fall into that general rule. I admit that I have exceptions to my rule. For example, I can imagine excusing some — but only some — crimes involving entrapment, or highly technical and basically harmless violations of complex rules in the context of a good-faith effort to comply, or reliance on reasonable advice of counsel. But this case — from what we know so far — isn't even close to one of those exceptions.

The problem is not infidelity. It's not even the overweening stupidity (“worse than a crime: a blunder”). Nor even the incredible assumption that so many politicians and CEOs seem to have that the rules that apply elsewhere don't apply to them — although that gets close. The problem is that this is criminal behavior. And we really can't define our minimum requirements for public life that low and still hope to get this country out of the ditch.

The charge of “structuring” cash withdrawals seems to me the sort of technical issue I would be inclined to forgive; the suggestions of a Mann Act claim are silly on these facts; but the basic fact remains that hiring prostitutes is a crime. Maybe — maybe — it should be legal. (I don't feel well enough informed as to how 'victimless' a crime this is to have strong views; the expensive market may differ from the street, further complicating matters.) But it's not legal. And I think we must expect basic legality from public officials (and if they don't like the rules, let them lead the charge for better ones). That this particular crime is rarely prosecuted, and even more rarely prosecuted by the feds doesn't change a thing. That Spitzer once trumpeted his office's prosecution of a prostitution ring just adds hypocrisy to the mix.

Even if it this case were shown to be highly selective prosecution of a Democratic Governor by a partisan Justice Department — and we don't at present have nearly enough facts to allow us to reach any conclusions on this question — my conclusion remains firm: if indeed the facts are as we currently know them, then Spitzer must go.

(And so too should Senator David Vitter. And no doubt many others.)

Posted in Law: Ethics | 4 Comments

How to Enable Denial of Service Attacks on Courts

Following Vernon Valentine Palmer's evidence that judges were more likely to rule for parties that had contributed to their election, X-Judge H. Lee Sarokin endorses a mandatory recusal policy for elected judges: “Judges should recuse themselves in cases in which either a lawyer or litigant has contributed to their election.”

Sounds great, right? So if I'm a corporate lawyer (or union lawyer) and think Judge Y leans too far towards unions (or against, as the case may be), all I have to do is make a token contribution to that judge and voila! I've stacked the bench.

The disease is likely real, but this cure is worse than the disease.

Posted in Law: Ethics | 2 Comments

Behold the Blogging Magistrate

I know we have at least one blogging ex-judge in the US. There's the judge who collects legal humor. And, of course, there's Judge Posner, something of a law unto himself, who give his views online (mostly with his law & economics professor hat on), but do we have any serving judges with a full-time blog who discuss matters at all close to their service on the bench?

England (allegedly) does. See the (pseudonymous) The Magistrate's Blog. [In fact, I've just realized as I was editing this post, there's more than one, as the View From The Bench plausibly claims to “Being the thoughts, rants, speculations and anecdotes of a magistrate on a northern bench.”]

An English magistrate is a judge of limited jurisdiction, mostly petty offenses punishable by up to six months in gaol. Interestingly, many magistrates are not trained lawyers, although they do have legal advisers. (See the Wikipedia entry for more comprehensive, and perhaps even accurate, information.)

Whoever “Bystander” is, real magistrate or not, The Magistrate's Blog is an erudite and interesting blog. Yet there are some obvious ethical issues raised by a judge commenting on things that touch on past cases; these concerns are perhaps lessened by the magistrate's historical role as something of a representative of community values, or (traditionally) at least of the values of the better and rather more upper-crust elements of the community.

The magistrate, if that s/he be, deals with these with this self-description and disclaimer:

Musings and Snippets from an English Magistrate This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

And perhaps that is enough.

Even so, I don't think that a sitting US judge would dare do anything like this. We've seen a prosecutor get in trouble for blogging. And of course there was the defendant who blogged about his own case pseudonymously — and lost the case when opposing counsel figured out who he was.

There are also a host of juror-bloggers. There's nothing wrong with a (petit) juror blogging after the trial is over, but it's obviously a ground for major concern if it happens during the trial as it provides a conduit for juror to lawyer/party communications which (a) might give one side an unfair advantage if only one side is learning what arguments are working ; (b) facilitate jury tampering; (c) provides fertile grounds for appeals. (More on blogging jurors here and here and no doubt elsewhere.)

Don't get me wrong, as a reader, I'm a fan. And I'm prepared to agree that the world is better off with the Magistrate's Blog than without it — so long as it's being true to its promise to change enough facts “to preserve the truth of the tale but to disguise its exact source”. But that is very difficult to do consistently over a long period of time. How, I wonder, was it done in this post, for example? (In the comments, Bystander even states that counsel read a particular case to the court!) If indeed the blog is by an actual Magistrate, the danger of slipping, or even of discovery over time without any slipping, is all too real.

Would discovery be that bad? In principle there's no difference between a judge writing an academic article about law reform and a magistrate blogging about legal issues that come up in and around the court s/he serves on. Were I a judge, however, I don't think I'd blog, and I certainly wouldn't do it pseudonymously if only because people would be sure to see that — however unfairly — as a sign of a guilty conscience. More importantly, print usually has editors and always takes time, which gives one opportunities for reflection. Blogging is quick and usually unedited. Risky….

But meanwhile, I'm going to be reading what “Bystander” writes.

Posted in Blogs, Law: Ethics, UK | Leave a comment

Justice Delayed (and Covered Up)

Simple Justice Blog, Appeals Court Buries the Body So No One Knows, tells a strange and disturbing tale of NY state justice.

It features multiple carelessness and incompetence, an unethical prosecutor, a judge unworthy of the robe, and general callousness.

In the end, justice of a sort was done, and a mistaken conviction set aside … in a way that covered many tracks.

Every law student should read this — reality isn't quite like the textbooks.

Posted in Law: Ethics | 3 Comments

Senators Ask SG Clement to Appoint a Special Prosecutor

Four Senators have written a stong letter (.pdf, also available in plain text) to Solicitor General Paul Clement asking him to appoint a Special Prosecutor to investigate whether Gonzales has committed perjury or obstruction of justice.

This puts Clement — often mentioned as a straight-arrow choice if the GOP ever gets another Supreme Court nomination — in the hot seat.

(I hear Patrick Fitzgerald just finished a couple of big trials, so I imagine he's available.)

I'm not entirely clear why Clement who, as Solicitor General is, I thought, only #4 in the DoJ pecking order, is acting AG for matters for which Gonzales is recused. Is it because there is currently no confirmed #2 or #3, or has the pecking order changed?

Update: Transcript of the press conference announcing the letter, in which Senator Russ Feingold says, “Based on what we know and the evidence about what happened in terms of the gang of eight and what he said in that sworn testimony in the committee, I believe it's perjury.”

Posted in Law: Ethics | 1 Comment

Does Posing Naked for Playboy TV Have Anything to Do With Your Fitness to Practice Law?

There's heavy breathing going on at the WSJ Law blog as they report that Brooklyn Law School Student Bares All. It seems that Ms. Adriana Dominguez, a 3L who has “worked in the domestic violence unit in the Brooklyn DA’s office and served as treasurer of her law school’s Legal Association of Activist Women” also, as the NY Daily News put it, “shed her briefs”.

The WSJ blogger asks if this additional extracurricular activity might cause difficulties with the NY character and fitness committee when Ms. Dominguez applies to join the bar.

Let the jokes about visible fitness of the candidate, and the lack of character of the bar begin.

Kidding aside — assuming the conduct in the video was legal, it's First Amendment protected speech, and I can't imagine how a bar committee would dare block someone on the basis of their legally protected speech. They better not dare, anyway.

A more interesting question is to what extent a stunt like this might impact one's legal career. I imagine some straitlaced firms might think twice about hiring this kind of amateur videographer. (Maybe Sullivan & Cromwell is not a good bet?) And I could see it being an issue that might get in the way of a judicial career — would a governor or President nominate someone knowing this would be an issue at the confirmation hearing?

Some people are going to say that this sort of dumb stunt shows poor judgment, and might raise legitimate questions in a client's mind. And I'm sure that there comes a — gradually receding? — point where it's all just too much. But if the romp in question is no more than the Daily News article makes it sound (“happily strips naked, gets spanked and holds gavels up to her bare breasts”) well, really, who in the end cares?

Posted in Law School, Law: Ethics | 6 Comments

An Honest Man

It's often forgotten how it came to be that uber prosecutor Patrick Fitzgerald got appointed Special Counsel for the Plame investigation. After a period of Attorney General John Ashcroft's dithering and meddling, it finally dawned on someone that Ashcroft was conflicted out from the Plame case given the likelihood that the White House was involved, so responsibility for deciding what should be done passed to his deputy, James B. Comey. In his capacity as Acting Attorney General, Mr. Comey selected Patrick Fitzgerald because Comey believed Fitzgerald was the best US Attorney in the nation, and thus the best person for the job. (Comey behaved with similar rectitude when he took a principled stand against unfettered domestic surveillance.) And in due course, naturally, Comey got punished for his honesty, being passed over for the top job at Justice, landing on his feet at a defense contractor.

So if you are the sort of person who will celebrate today's verdict in the Libby trial, not vindictively, but as welcome evidence that the system works (sometimes), then perhaps you might also raise one toast for James B. Comey, patriot.

Posted in Law: Ethics | 1 Comment