Posts Tagged ‘legal ethics’

AP writer Greg Risling reported today on the sentencing of former Milberg Weiss partners Steven Schulman and David Bershad for their roles in a scheme involving the payment of kickbacks to plaintiffs in securities class actions.  Both lawyers were sentenced to six month prison terms.  The scandal involved paying class representatives a portion of the oftentimes multi-million dollar legal fee awards obtained as part of large class action settlements.  In this way, the conspirators were able to provide a significantly greater incentive for a plaintiff to pursue the case than if he or she were limited to recovering an amount necessary to compensate them for their injury.  However, fee-splitting with non-lawyers is considered unethical under long-standing rules of professional conduct.  According to the article, available at Newsweek.com:

In a letter submitted to Federal District Court Judge John Walter, Bershad apologized for the deception.

“I now recognize that our behavior grievously injured the judicial process,” he wrote. “I will live out my days with the painful knowledge that our acts tarnished all of the good work we did.”

Co-conspirator William Lerach published an essay in Portfolio.com earlier this year entitled “I am Guilty,” in which he unapologetically blamed his conviction on zealous prosecutors, the bar associations, big business, and just about everyone other than himself.  Lerach’s diatribe makes the quote from Bershad’s letter seem downright contrite, until you look more closely at his word choice: “I now recognize.”  Though subtle, either the introductory clause reflects a lingering defiance, being code for “I know I need to say this but I don’t really mean it,” or Bershad was commenting on the difficulty of seeing anything wrong with his behavior in the first place: “how could I possibly have known that what I was doing was illegal?”  Either way, his failure to state simply that “Our behavior grievously injured the judicial process” reflects the warped sense of morality that underlies the actions of the lawyers involved in the scandal.

Bershad’s apology fails to recognize that his illegal acts didn’t just tarnish “all the good work” he believes he did, they took the “good” of the work entirely.

Essentially, the argument is that fee-splitting with clients, while concededly unethical and illegal, was a morally necessary tactic to level the playing field in taking on powerful interests.  “Whistleblowers” just needed an extra push to convince them to help the white knights seek justice against evil corporations.  Lerach’s essay even goes so far as to compare his crusade to that of the lawyers who brought the landmark civil rights decision Brown v. Board of Education, though his essay glosses over the small detail that those lawyers did not need kickbacks to persuade a plaintiff to help them do justice.

The “end justifies the means” argument does not work here.  Taking on wrongs in the name of public interest is what attorneys general and other regulators are for.  If public prosecution is not enough, and if there is a true problem in incentivizing victims to pursue a civil remedy without having to bribe them, then we should have a debate about how to change the system.  The kind of private vigilante justice that Lerach and his counterparts championed, where the rule of law is abandoned in the name of the common good, can only lead to exploitation and greed.  It can in no way be considered “good work.”

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Sarah Waldeck, contributor to a great general interest law blog called Concurring Opinions, has posted a commentary discussing the recent decision to certify a class of out-of-state law graduates challenging Wisconsin’s “diploma privilege,” which allows in-state graduates to be admitted to practice without taking the bar examination.  Ms. Waldeck’s article raises questions about the social utility of a state requiring recent graduates to take the bar examination at all, sparking some thoughtful comments in response.

I don’t have a strong opinion about the benefits of requiring admittees to take the bar examination generally.  I supposed that if I’m really honest about it, my view is similar to my view on freshman initiation when I was a high school senior: I had to go through it, so you should too.  A requirement that every new admittee have passed at least one bar exam provides a minimal test of the analytical abilities and, perhaps more importantly, the level of commitment to preparation and study necessary to provide competent representation to the lawyer’s clients.  But surviving three years of law school demonstrates these skills to some extent too.

A more important question to me is whether there is any practical benefit to a state requiring applicants to take its own bar examination, when most of what gets tested is similar from state to state anyway and when the vagaries of a state’s unique laws and procedures are not likely to sink in without the repetition of practice anyway even when one has attended law school in that state.  Having taken and passed the ethics portion of the Washington state bar exam earlier this year, part of me is leaning toward the “I had to do it, you should too” attitude on that issue too.  But then again, like many commercial litigators with clients who do business nationwide, it is not feasible to restrict my practice to a single state, nor is it feasible to meet the general admission requirements of every state where one of my clients might get sued some day. 

See my earlier entry discussing Wisconsin class certification decision followed by loosely-related musings on mulitijurisdictional practice of law here.

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The best single piece of advice I ever got as a young lawyer came on one of the first days of my clerkship with the late U.S. District Judge D. Brook Bartlett.  My fellow clerk Jon Duncan and I were visiting Judge Bartlett at home to go over a pile of orders and bring him the Big Mac and fries that he’d been craving.  He was working from home while going through a round of chemotherapy following a bone marrow transplant to treat the cancer that would ultimately take his life a few years later.  Judge Bartlett gave me a lifetime’s worth of lessons in the two years I was honored to spend with him, and he serves as a role model for me both as an accomplished lawyer and as a person of extraordinary integrity, wisdom, and courage.

But this particular piece of advice came from the Judge’s wife, Karen Iverson, an accomplished lawyer in her own right.  Karen had been a partner in a big Kansas City firm before deciding to follow her passion and pursue a second career in theatre design.  I think it was when we were discussing how the Judge should deal with a minor discovery dispute, or a dispute about a request for a continuance or extension of time, that Karen let us in on her key to success: kill your opponent with kindness.

Agree to reasonable extensions of time and other requests, she said.  Be accomodating to opposing counsel.  Don’t raise an objection just because you can if it doesn’t help your client.  Give complete and thoughtful responses to discovery requests.  Don’t think it’s necessary to fight about every minor issue.  Then, when it’s time to argue about something important, you’ll have the credibility you need for the court take your position seriously, and you might even catch your opponent off guard.

I haven’t always followed Karen’s advice.  I recall more than a few shouting matches with opposing lawyers, especially during my first years as a litigation associate.  Those were arguments that never got me or my client anywhere.  No matter how earnest my argument, my opponent wasn’t going to be persuaded by it, and losing my cool wasn’t helping me keep the clarity of thought needed to develop and follow the best strategy for my client’s cause.

When I have followed Karen’s advice, though, it’s never steered me wrong.  Whether it has been due to following her strategy of civility, or just fantastic luck, I have been blessed in more recent years to have developed mostly collegial relationships and even friendships with opposing lawyers.  Getting along with opposing counsel has never, in my view, cost my clients anything.  I can meet all of my ethical obligations to my client and be a zealous advocate on the meaningful issues in the case without being a jerk to opposing counsel.  And the benefits of the approach are numerous, both for me and my clients.  I get extensions of time when I ask for them; I don’t get threatened with motions for sanctions; I am taken at my word in discovery without having to “prove” that I have fully complied with a request; settlement, even without the aid of a mediator, is a much easier process; and maybe most important at all, my stress level stays fairly low.

I’m sure part of the explanation for the civility that I have encountered in my practice may be the nature of a consumer class action practice itself.  The cases drag on for years even under the best of circumstances and the lawyers know from the outset they are going to have to deal with each other for a while, so they might as well get along.  Decision-makers on both sides tend to make their decisions based on a cost/benefit analysis as opposed to emotions.  The lawyers know that the size of the cases already make them a burden on the court, so they may tend to tread more lightly when it comes to deciding whether to resort to the Judge to resolve minor disputes.  But whatever the reason, my many positive relationships with opposing counsel have only strengthened my belief that the Golden Rule is not inherently inconsistent with the practice of law.

Maybe someday, years from now, a seasoned litigator will look back to his or her time as a young lawyer and remember hearing from me the same advice that Karen gave to me those years ago.  If so, I will be able to count my legal career a success.  Karen’s advice has withstood the tests of my experience, although I still have to remind myself of it from time to time.  Practicing with civility isn’t just a way to get opposing lawyers to like me, and it’s not just the right thing to do–It’s also the best way I know to serve the interests of my clients.

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