Ethics

Iowa exercises power over an MJP lawyer with an out-of-state license.  (h/t to Ethical Quandary)       .  .  .  .  .       DC to consider screening proposals.  (h/t: Legal Profession Blog)  For that matter, California's Supreme Court will need to consider the decision of its Rules Revision Commission not to have a screening rule but rather to let courts decide screening case-by-case.       .  .  .  .  .       Wow.  Jury awards $8.8 million to a lawyer, because the firm to which he was lateraling misrepresented the firm's finances.  (h/t: ABA Journal)  Can you imagine the upsurge in lawsuits if people sued every time a lateral or the new firm did some puffing to each other about finances and prospects?       .  .  .  .  .       Having to explain a B- some 25 years later?  (h/t: NYT)       .  .  .  .  .       There's a new report claiming that the federal criminal code has eroded the criminal intent requirement.  That certainly puts even more emphasis on prosecutorial discretion and judgment, as this story shows.  (h/t: White Collar Crime Prof Blog)       .  .  .  .  .       Federal Circuit finds that lawyer pursued frivolous claims.       .  .  .  .  .      Don't mess with the escrow fees.  Better yet: let escrow agents handle escrows and you handle the law.       .  .  .  .  .       DC Bar opines that a contract lawyer's conflicts aren't necessarily imputed to the firm.  (h/t: Hinshaw Culbertson)       .  .  .  .  .       Harold Koh defends the lawyers who defend the detainees, which gives The American Prospect a chance to comment on the House provision for investigating the detainees' lawyers.  I posted previously on the post at Balkinization and on the New York Times article.  I hadn't realized that, apparently, the Senate has yet to agree to the provision.       .  .  .  .  .       Finally, David Luban has reviewed the Daniel Markovits book that we've discussed here at some length and which Monroe Freedman (with Abbe Smith) reviewed and criticized.  (h/t: Legal Theory Blog)  The abstract:

Daniel Markovits offers a novel defense of the traditional partisan advocate?s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called "negative capability" - a suppression of the self in order to allow someone else?s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) over the first-personal. He argues for this conclusion based on a theory of bounded rationality and bounded willpower. For Markovits, the adversary advocate plays a crucial role in securing the legitimacy of adjudication and reconciling losers to its results. In conclusion, he argues that the social conditions under which lawyers may live with integrity have eroded with the disintegration of the bar?s social structures and the prevalence of external regulation. Markovits also criticizes the enterprise of normative ethics as anti-philosophical and insists that the task of philosophical ethics is simply to describe what is.

My review takes issue with Markovits on many of these points. I suggest that in highly adversarial settings, ordinary morality tolerates some of the practices Markovits labels "lying" and "cheating," and thus his contrast between lawyer?s ethics and ordinary ethics is overdrawn. Markovits?s own theory turns out to be far more normative than he acknowledges, and in fact would rule out common adversarial practices such as filing a counterclaim to intimidate an adversary into dropping a lawsuit. I criticize his account of bounded rationality and willpower, arguing that they lead to absurd consequences that Markovits himself does not accept. His defense of adversary advocacy turns on the controversial premise that legitimacy is a more important social value than justice and, contrary to his intention, it defends advocacy only as a lesser evil rather than an ideal to be embraced. Finally, I criticize his suggestion that leading a life of integrity is impossible under modern conditions.