The Opening Brief

“A remarkable reversal of fortune” was the court’s rather restrained characterization of what happens when the IRS initially sends you a bill for $35 million in back taxes, but then later decides that the government owes you a refund.  (My initial reaction was — now there is good tax attorney at work!).

Even with this reversal of fortune, however, the taxpayers decided that they did not get the service they should have from their accountant and therefore sued for malpractice.  The court decided that the statute of limitations runs from the IRS’ final determination (the one here where the taxpayer ended up with a refund) rather than from that jaw-dropping initial communication that the taxpayer owed millions in back taxes.

Opinionjournal.com is reporting that disbarred criminal defense attorney Lynn Stewart will be lecturing at Hofstra Law School as part of their Legal Ethics Conference.  Stewart was disbarred after she was convicted of passing messages from her jailed client, Sheik Omar Abdel-Rahman, to an Egyptian-based terrorist group.  Stewart will be speaking on the representation of unpopular clients — something she is undoubtedly qualified to do given that the client noted above is serving a life sentence for planning terrorist attacks in New York.  It seems ironic, however, to invite an attorney who has been disbarred after criminal conviction to speak at a conference about legal ethics.

UPDATE:  More on the issue from Legal Ethics Blog

In an article relevant to a recent post here, the “e-version” of the ABA newsletter is arguing that relying on personal honor is a better way to achieve ethical behavior than more regulation:

Regulatory structures divert people from recognizing that they are making moral judgments and attempt to force ethical decisions through the threat of punishment, compliance programs, performance appraisals, surveillance, rewards and sanctions.  The problem is that “instead of deciding to do the right thing, people engage in a calculation,” she said.  If the costs of being caught in an infraction are not high, even with a high likelihood of detection they may take a risk and behave unethically.

I agree with the basic premise — but how do we get members of our profession to recognize the moral judgment involved in their conduct?

A number of California attorneys I have spoken to over the years have complained about “Los Angeles attorneys” — asserting that attorneys practicing in the City of Angels are afflicted more than most with “attack-dog” syndrome and a lack of professionalism an civility.  Los Angeles certainly does not have a monopoly on this type of practice, but when you confront attorneys like this, you have to wonder why the courts do not take some action to address the problem.

Well, apparently, there is a line you cannot cross — even in LA.  The Court of Appeal in Stephen Slesinger, Inc. v. Walt Disney Company upheld dismissal of the plaintiff’s case as an appropriate sanction for “egregious” misconduct.  At issue in the case were some unique, and illegal, discovery practices — including breaking and entering.

One can hope that one day, members of our profession will assert themselves and insist on professionalism, civility, and ethical practices.  Until then, however, it is nice to know that the courts are occassionally willing to step in to put a halt to “litigation misconduct run wild.”

In a jab at lawyers who prefer to use an acronym wherever possible, Judge Kleinfeld of the 9th Circuit offers this footnote in the recent decision in Northern Cheyene Tribe v. Norton:

“Environmental lawyers ordinarily use acronyms, and cite statutes by section numbers in the enactment rather than by section numbers in the United States Code. This opinion is written in ordinary English. Specialists might find this opinion more accessible if we explain that it concerns a NEPA challenge to a ROD of the BLM concluding that a FEIS adequately evaluated CBM development under the Powder River Resource Area RMP. The district court held the FEIS inadequate and partially enjoined approval of APDs until BLM completed a SEIS. We refer to statutory provisions by section numbers in the United States Code rather than section numbers in the original Act. See Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1308 n.1 (9th Cir. 1992).”

In a published decision, the First District Court of Appeal suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ”clearly are pertinent to any meaningful discussion of the issue.”  The court cited Rule 5-200 of the Rules of Professional Conduct, requiring that attorneys employ only those means “consistent with the truth” and that attorneys not “seek to mislead the judge … by an artifice or false statement of fact or law.”

To interpret the California Rule, the court found persuasive ABA Model Rule 3.3 which requires a lawyer to disclose relevant authority “directly adverse to the position of the client and not disclosed by opposing counsel.”

Now, in this case, the contrary authority was disclosed by opposing counsel and the court’s criticism came in response to a comment by opposing counsel criticizing the failure to address the cases on point.

Regardless of whether you agree with the court in this instance that failure to address highly relevant cases cited by your opponent is “unethical,” and whatever actually happened in this case, you must at least concede that it does not help your advocacy.  Practice in the appellate forum gives the advocate perhaps the best opportunity to confront adverse authority and to argue that the cases should be distinguished or even overturned.  If the cited cases are a key part of your opponents case, failure to address those decisions surrenders what may be your only chance to prevail.

On September 12, the California Supreme Court issued an order granting the petition for review in Conroy v. UC Regents.  The Court of Appeal had ruled for the University on the following issues raised by Ms. Conroy:

Conroy contends the Regents breached contractual and legal duties to her when UCI failed to keep track of her husband’s body, failed to contact her before disposing of her husband’s remains, and mishandled or otherwise treated her husband’s body in a disrespectful manner while using it for purposes other than teaching or scientific research.

The appellate court ruled that the matter was governed solely by the donation form executed by her husband.  On that basis, the court upheld the trial court judgment rejecting Ms. Conroy’s claims of negligence, fraud, misrepresentation, intentional infliction of emotional distress, breach of special duty, and breach of implied contract

Over at PrawfsBlawg, there is an interesting discussion on what role decisions from foreign jurisdictions should have in aiding the interpretation of our constitutions.  The question posed in the lead post is why we tend to get upset about citation to decisions from foreign countries when appellate courts look for assistance in interpreting the US Constitution, yet we do not even raise the question when state courts look to the decisions of other states to interpret their state constitution.

Here is my contribution to the discussion:

It often makes sense for states to look to the constitutions of other states — often the state constitutions were copied from each other (California’s original constitution borrowed heavily from New York). It does not make much sense for states to look to cases interpreting the federal constitution, however, since the two levels of constitution are so very different (the federal being a grant of power and the state being a limit on power, to name just one significant difference).

That difference between state and federal constitutions, however, pales in comparison to the difference between the US Constitution and the constitution of another country. The constitution is a product of the political history of the people. To make the foreign constitution at all relevant (none of them pre-date the US Constitution), you would at least need to show some relevant parallels in the political history.

This is an important topic.  Appellate advocates should pay attention to how their courts use decisions from other courts and other jurisdictions.

Professor Edward Cheng is circulating a new working paper entitled The Myth of the Generalist Judge:  An Empircal Study of Opinion Specialization in the Federal Courts of Appeals.  Professor Cheng studied all federal appellate decisions (with the exception of opinions from the Federal Circuit) issued between 1995 and 2005.  He concludes that “opinion specialization [is an] unmistakable part of every day judicial practice.”

If true, this suggests a more focused approach for the federal appellate lawyer.  One of the difficulties for the appellate practitioner is not knowing the audience for the brief.  If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind.  This population of potential opinion writers is still larger than the ultimate panel that will hear the case.  Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.

Professor Jason Czarnezki of Marguette University Law School is circulating a new paper on SSRN entitled An Empircal Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law.  The article takes a close look at decisions from the DC, 2nd, and 9th circuits, and reports some “confusion” and “befuddlement” over application of the doctrine.  Nonetheless, Professor Czarnezki reports that the doctrine appears to be working “as expected.”  The professor also notes, however, some evidence that the panel’s ideological preference may affect the decision.

Practitioners of administrative law (and especially environmental law) will be interested in the findings.