CORRECTION (4/30/2012): This article was previously published without correct attribution. Quotation marks and links to original material have been added. Many thanks to John Steele, founder of www.legalethicsforum.com and author of the Top Ten Legal Ethics Stories of 2011.
It is another new year and it is time to look back on the top legal ethics stories of 2011. Not only are the stories interesting, but they portend trends as to how the courts view attorney conduct issues.
First, “a number of federal courts have upheld sophisticated agreements [advance waivers] between lawyers and clients pertaining to conflicts of interest that might arise in the future”. The opinions deal with the business client and show recognition by the courts that sophisticated clients should be allowed flexibility in how they deal with conflicts. Large firms, of course, support this position, as do lawyers who handle matters for corporate clients. See the Federal Circuit’s decision In re Shared Memory Graphics, LLC, 659 F.3d 1336, and California decisions Multimedia Patent Trust v. Apple (2011 U.S. Dist. Lexis 46237 (April 29, 2011) and SEC v. Tang, N. Dist. Calif. C-09-05146 JCS to see what type of client and waiver will pass muster .
Another interesting legal ethics development is the United States Supreme Court case Turner v. Rogers (Slip Op June 20, 2011). There, “the Court held that the 14th Amendment does not categorically require a state to provide counsel for all indigent parents facing a civil contempt hearing for non-payment of child support where the other parent is not represented by counsel“. ABA ethics rules favor attorneys providing pro bono services in these areas of law. “As many of [you] know,there has been a movement for various forms of ‘Civil Gideon’ rights to be established, so that indigent litigants would be assured state-provided counsel for certain kinds of litigation that most direct affect liberty interests (e.g., divorce, custody, eviction). The movement has been stymied politically and fiscally, but the ultimate fate of the movement is still very much up for grabs. California has established a pilot program for Civil Gideon [...] [but] in Guardianship of HC, 11 CDOS 10019, the California Supreme Court held that a mother did not have a due process right to counsel in a guardianship case.”
The most controversial development in ethics last year was the “explosion of suits against law schools alleging that the schools have been pumping out fraudulent statistics about the employment of their graduates”. For instance, law schools would say a graduate was employed within three months of graduation when he or she was working at a Starbucks making cappuccinos. The schools quickly responded that they had complied with ABA guidelines on reporting employment and “the ABA quickly re-wrote the regulations to increase necessary disclosures and close loopholes”. In some cases, schools like Illinois and Villanova admitted that they have been “juking the stats” to get admissions candidates. At a cost of $35,000-$40,000 per year just in tuition for a private law school, you can imagine how angry students are who entered law school in 2008.
On the criminal front, the ill-conceived prosecution of Glaxo-Smith-Kline in-house lawyer Laura Stevens imploded. Steven’s alleged criminal conduct was seen to be ordinary lawyering in the context of responding to administrative demands for information. Apparently the DOJ and the FDA publically stated that they would increasingly target individual corporate executives for criminal prosecution. They alleged that Ms. Stevens authored several letters during an investigation denying that GSK promoted Wellbutrin for off-label purposes. Stevens denied liability and based her defense on the claim that, in responding to an FDA inquiry, she took the advice of law firm King and Spaulding. Her reliance on lawyers’ advice negated the accusation that she intended to break the law. So far, there is no indictment of King and Spaulding and I doubt the SEC wants to take on that behemoth.
It will be interesting to see what new ethics developments 2012 will bring. Perhaps some long-awaited new Rules of Professional Conduct currently sitting in the California Supreme Court? Only time will tell.
Carol M. Langford is an attorney specializing in State Bar defense work and assisting nurses, brokers and doctors in their ethics matters. She is also an adjunct professor of professional responsibility at Boalt Hall and USF School of Law. Thanks to John Steele for his Top Ten Legal Ethics Stories blog.
Filed Under: Ethics Corner