Legal Ethics

Madam Justice Lori Douglas will be publicly probed.

This week brings good news for law firms in Canada. Apparently they weathered the recession better than their U.S. counterparts.

The news for Canadian judges, or at least one high-profile jurist, is less good. Madam Justice A. Lori Douglas — the Canadian judge featured in pornographic pictures showing her engaging in bondage, playing with sex toys and administering oral sex — will be subjected to a public inquiry.

Let’s take a look at the nudie pics procedural posture and possible consequences, shall we?

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Justice Stephen G. Breyer

Are justices of the U.S. Supreme Court gods, or men? There’s evidence on both sides. Their brilliant legal minds and dazzling résumés weigh in favor of deity designation. Their ability to make mistakes suggests that they’re mere mortals.

Supreme Court justices: they’re just like us! They get into accidents — as Justice Stephen Breyer did over Memorial Day weekend, while riding his bicycle near his home in Cambridge, Massachusetts. Justice Breyer broke his right collarbone in the incident — ouch (and more evidence to support my dislike of cycling).

This isn’t even the first vehicular mishap for one of the nine in 2011. As you may recall, Justice Antonin Scalia got in a car accident, back in March — and received a ticket for it.

Physical accidents involving federal judges might not be shocking; brainiacs aren’t known for their grace and agility. But ethical oversights might be more surprising.

Let’s look at the latest controversy involving Justice Samuel A. Alito Jr. — and whether the hubbub is justified….

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Johnathan Perkins

Today is Commencement at UVA Law School. Congratulations to all of the UVA students who will soon become UVA alumni. You’ve worked hard for your law degrees, and you deserve commendation.

(Hopefully you have jobs lined up. Or at least other talents that can help you make a living — and pay back your student loans.)

Is Johnathan Perkins, the 3L who famously (or infamously) admitted making up a story about how he was racially profiled and harassed by university police, going to receive a J.D. degree from UVA Law — today, or in the future?

Let’s discuss. We have some evidence….

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Lawyers love to talk about how technology always moves faster than the law. Nowhere is that tension more apparent (and sadistically fun to observe) than within the mean streets of Facebook. We’ve covered legal standards surrounding Facebook before — and it never gets old.

This week, a defense attorney in a personal injury case learns that just because you ask to be someone’s Facebook pal, that doesn’t mean they have to say yes. Even if you ask through the court system and your would-be “friend” happens to be suing your client for car-crash injuries.

A shocking revelation, right? Details after the ol’ jump.

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Every so often, we need to ask the question: Why do lawyers have to run law firms? Just because that’s the way it always has been doesn’t mean that it’s the right way to do things. Law is a business — obviously — so why can’t business people run them?

Things are the way they are now because of legal ethics rules barring non-lawyer ownership of legal practices. That’s not the only way to do it; England and Australia have no such bans.

We do in America, but hey, laws can change. At least that’s what Jacoby & Meyers is hoping.

Yeah, that Jacoby & Meyers….

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Is it really that hard to make a commencement speech? I wrote one in high school. It was basically about seizing the day. My friend made one in college. Same theme, only in Latin. You can also make commencement speeches about giving back to your community, the importance of education, or how your generation is the most awesome generation ever to be generated. It’s not hard, people.

And yet people consistently screw it up. Today we have two different ways that people can screw up a commencement speech — one example from an old person, one example from a young person. One example from a very good law school, one example from a school that isn’t ranked that highly.

Apparently, anybody can screw up a commencement address if they try hard enough….

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If I were in their role and in their position, I probably wouldn’t understand it either, that a club really can’t attract minority members.

– Judge Gilbert S. Merritt Jr. of the Sixth Circuit, commenting to the New York Times about two of his colleagues on the court — Eric L. Clay and R. Guy Cole Jr., both African-American — and their strong reactions against a bankruptcy judge’s membership in an all-white, all-male country club.

(Judge Merritt is also a member of the Belle Meade Country Club, although an honorary one without voting privileges.)

Paul Clement and John Boehner: now out of King & Spalding's hair.

Some people, including crisis communications experts, think that King & Spalding should just shut up already about the DOMA debacle. The firm agreed to represent the House of Representatives in defending the controversial Defense of Marriage Act, and then almost immediately turned around and withdrew from the representation. This prompted the departure from the firm of star appellate litigator Paul Clement, former Solicitor General of the United States, who took the DOMA matter over to his new firm, Bancroft PLLC.

The decision to drop DOMA defense also led to the defections of King & Spalding clients, like the NRA and the state of Virginia. It generated criticism of the firm from diverse quarters — everyone from Ken Cuccinelli to the New York Times editorial board. [FN1]

Despite the advice of the communications experts (with which I personally agree), King & Spalding continues to discuss the DOMA debacle. The firm is starting to sound like a therapy patient that won’t relinquish the couch, and just wants to yap and yap and yap. Are you listening?

Let’s look at the latest revelations — and also some compensation news out of K&S….

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Does this sign also mean no blacks or women allowed?

It’s the ruling that is splitting the Sixth Circuit apart. A federal bankruptcy judge, George Paine II, belongs to an all-white country club in Nashville. But there is a pesky judicial code of conduct that says that judges “should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin,” according to the New York Times (gavel bang: ABA Journal).

That seems cut and dry to me. An all-white, all-male country club sounds a hell of a lot like an organization practicing “invidious discrimination.” But I’m not on the Sixth Circuit.

And the Sixth Circuit essentially told Judge Paine: guys in my high school used to belong to discriminatory clubs all the time, it was no big deal.

In a 10-8 decision, the circuit decided to allow Paine to continue his membership in the club and on the bankruptcy court.

So that code of judicial conduct means what exactly?

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You always hear this business axiom: “The customer is always right.” Whether true or not, you’re supposed to at least let the customer believe that he or she is correct. But in my experience, that doesn’t always work.

Before I went to law school, I was a banker. (That sentence makes me sound old, since I started law school 20 years ago this fall. Whatever.) Anywho, in my years as a banker, I frequently had to explain to customers the vagaries of the American banking system. “What do you mean my money’s not in my account? I just deposited the check. Of course it’s there!” No, sir, I’d have to say. Your money’s not there. Your check hasn’t cleared. The customer was very often just not right.

Turns out, practicing law isn’t much different. Your clients are often wrong. And your job as their lawyer is often to tell them that they’re wrong.

Even if it gets you fired.…

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