More comments on the role of lawyers in the GM debacle and the connection with the need for less secrecy in litigation

News and comments regarding General Motors keep piling up and none of it is good for the automaker. You can go to my Torts blog fore more information and links, but the important aspect of the debate here relates to the role of the lawyers involved and the on-going debate about the need to control secrecy in litigation.  Here are a few links.

June 14: Richard Zitrin (UC Hastings):  Secret settlements fueled GM's latest ethical inferno

June 16: Richard Painter (Minnesota):  Down the ladder due diligence is just as important as up the ladder reporting

June 18: NY Times: GM CEO faces criticism in House hearings (includes short video)

June 19:  Painter and Zitrin:  GM's general counsel and CEO should resign or be fired

June 24:  John Steele (Legal Ethics Forum): Update on the proposed sunshine in litigation act 

Update on the story of the judge and prosecutor who were disciplined for engaging in a personal relationship during trial

About two weeks ago I posted a note about a judge in Florida who was disbarred because, while serving as the presiding judge in a capital first-degree murder case, the judge commenced a significant emotional relationship with the lead prosecutor in the case. The prosecutor, on the other hand, was only suspended for two years.  There is more information on the story here and here.

New York City Bar Association issues opinion on virtual offices

The New York City Bar Association’s Committee on Professional Ethics has issued an opinion (2014-02) on the use of virtual law offices. The Legal Ethics Forum has more.

Calls To Reform Wisconsin Attorney Discipline

The Legal Profession blog has an article on calls to reform the disciplinary system in Wisconsin.

The role of lawyers in the GM debacle

The debacle surrounding GM's car recalls, lawsuits and corporate culture has generated a great debate on issues related to torts, safety, litigation, the use of bankruptcy protection, alternative compensation funds and the role of lawyers.  Sadly, much of the debate shows we (whatever you interpret "we" to mean - society, lawyers, judges, regulatory agencies) have not learned important lessons from the past.   You really should take a few minutes and go to the following sites to read up on the issues (and make sure you read the comments too):

The Legal Ethics Forum reports (with links) that GM has fired lawyers as a result of an investigation.

Link to the report prepared by a lawfirm for GM.

"Shades of Enron: the Legal Ethics Implications of the General Motors Scandal"

New York Times article:  "G.M. Lawyers Hid Fatal Flaw, From Critics and One Another"

Richard Zitrin explains the connection between secrecy in litigation and the current issues

The PopTort on GM corporate culture

How not to practice law: if you are a judge, start a relationship with the prosecutor in the case; if you are cited to a disciplinary proceeding, show up in shorts and a t-shirt; if you like someone you interviewed, send her "sexting" messages.

Here are three recent stories to add to the on-going list of "how not to practice law" posts:

1. While serving as the presiding judge in a capital first-degree murder case, Gardiner commenced a significant emotional relationship with the lead prosecutor in the case.  Story here and here.   Interestingly, the prosecutor was only suspended for two years.  Why disbar the judge but not the prosecutor?

2.  Show Up For Your Disciplinary Hearing In Shorts, T-Shirt And Running Shoes.  Story here.

3.  Sext.

Illinois Review Board issues opinion that suggests minor sanction is in order for misappropriation if there was a good reason to misappropriate

Although there are always exceptions, misappropriation of client's funds will almost always result in disbarment.  This is certainly true in Illinois, where almost every year misappropriation ranks as one of the top types of misconduct that results in disbarment.  And this is a not a bad thing.  If you steal money from your client you should be disbarred. Period; end of story.  That is what I teach my students.  But, like I said, there are always exceptions.  The hard question is what are the reasons for which we should make an exception.

This is why I was surprised to read about this decision of the Illinois Review Board recommending a mere 30-day suspension for a case of misappropriation because the Board apparently thought the misappropriation was done for "sympathetic reasons."

I understand that every case is different and that the Board should consider arguments in favor of mitigation, but it always troubles me when a decision seems to suggest that there are good reasons to steal and bad reasons to steal and that you will not get in serious trouble if you steal for a good reason. Aside from going against the vast majority of the cases on the issue, this type of reasoning sets a bad policy.

In particular, the court considered as a mitigating factor the fact that the client was not aware that the lawyer had misappropriated the funds.  Again, I understand that the Board is essentially saying that the client was not harmed by the misconduct, but what it says can also be interpreted to mean that the better the lawyer is in hiding the misconduct from the client, the lesser the sanctions should be.  This does not make much sense to me.

I think the opinion should be reversed and a stronger sanction should be imposed.  

Podcast: Has the Promise of Gideon v. Wainwright Been Fulfilled?

Last year we celebrated the 50th anniversary of Gideon v. Wainwright and there was a lot of discussion on the state of access to legal representation in criminal cases.  I posted a series of links to many of the articles and debates around the internet here, here, here, here and here. Now, about a year after the first of those posts, the Legal Talk Network's podcast channel Lawyer2Lawyer has posted this a new podcast on the subject.

Update on the story regarding Oregon's decision to consider intra-firm consultation protected under attorney-client privilege

Bernard A. Burk, Assistant Professor of Law Faculty Fellow, Parr Center for Ethics University of North Carolina School of Law, wrote to me in response to my original post with a couple of important points:

1.  There is a line of federal district and bankruptcy court decisions in the 90s and 2000s denying or limiting the privilege under similar circumstances. The cases reason, more or less, that internal consultation with firm counsel regarding the firm's rights and duties vis-à-vis a client, at least while the engagement continues, violates the firm's fiduciary duty of loyalty and thus should not be shielded by the attorney-client privilege. They cases include (among others) In re Sunrise Sec. Litig., 130 F.R.D. 560, 595 (E.D. Pa. 1989); Koen Book Distributors v. Powell, Trachtman, Logan, Carrie, Bowman & Lombardo P.C., 212 F.R.D. 283 (E.D. Pa. 2002); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 220 F.Supp.2d 283 (S.D. N.Y. 2002); SonicBlue Claims LLC v. Portside Growth & Opportunity Fund Ltd. (In re SONICBlue Inc.), No. 03-51775, Bloomberg law Citation: 2008 BL 15488 (Bankr. N.D. Cal. Jan. 18, 2008); Thelen Reid & Priest LLP v. Marland, No. C 06-2071 VRW, 2007 BL 226352 (N.D. Cal. Feb. 21, 2007). There are all kinds of reasons why, in my humble opinion, the earlier federal decisions are poorly reasoned and implement bad policy. But the issue has been current a lot longer than some may think, and until recently was regularly decided the other way.

2. The ABA House of Delegates recently adopted a resolution supporting the decisions in Georgia and Massachusetts.

Thanks to Bernie for the updates!

Are legal services "unaffordable"?

A few days ago, The Atlantic published an article titled Is There Such a Thing as an Affordable Lawyer?  The article argues that the monopoly on legal services by lawyers results in legal services becoming overpriced and unaffordable.  I agree that legal services are expensive and that many people in need of services can't afford them, but the story upon which the article is based did not provide the best support for the argument according to comments in the Legal Ethics Forum and My Shingle.