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PROFESSIONAL LAWYER
American Bar Association Center for Professional Responsibility Standing Committee on Professionalism
2010 Volume 20 No. 3

Lawyers and Leadership*


Deborah L. Rhode

ost lawyers come to the subject of leadership with well-founded skepticism. On


first glance, the field seems a backwater
of vacuous rhetoric and slick marketing. Retired
CEOs peddle complacent memoirs, and consultants
churn out endless variations of management by
fad.1 Leadership lite includes classics such as
If Aristotle Ran General Motors, and Leadership
Secrets from sources as varied as Attila the Hun,
The Toys You Loved as a Child, and Star Trek.2 Why
should lawyers squander time on that?
An equally interesting and possibly more important question is why we generally dont. Why dont
we address the topic of leadership and in a more
serious way than pop publications provide? After
all, no other occupation accounts for such a large
proportion of leaders. The legal profession has
supplied a majority of American presidents, and
in recent decades, almost half of Congress, and 10
percent of S&P 500 companies CEOs.3 Lawyers
occupy leadership roles as governors, state legislators, judges, prosecutors, general counsel, law firm
managing partners, and heads of government and
nonprofit organizations. In advising influential clients, or chairing community and charitable boards,
lawyers are also leaders of leaders.4
Even members of the bar who do not land in
top positions frequently play leadership roles in
teams, committees, campaigns, and other group
efforts. Moreover, many of the decision making,
organizational, interpersonal, and ethical skills that
are critical for leadership positions are important
for professionals at all levels. Yet most lawyers
never receive formal education in such leadership
skills. Nor do they generally perceive that to be a
problem, which is itself problematic, particularly
considering the leadership deficit facing our profession and our world.
Deborah L. Rhode is the Director, Center on the Legal Profession, E.W.
McFarland Professor of Law, Stanford University.

I. The Importance of Leaders and


Leadership Development
The Leadership Deficit

Todays leaders face challenges of unprecedented


scale and complexity. In representing clients,
shaping public policy, and leading corporate,
government, and non-profit organizations, lawyers
confront societys most urgent unsolved issues. On
many of these issues, effective leadership is lacking. Corporate governance, environmental protection, human rights, national security, civil liberties,
and entrenched poverty all demand leaders with
broad skills and deep ethical commitments. So too,
lawyers who head law firms, bar associations, and
other legal organizations must cope with increased
pressure, including intense competition and growing needs for legal assistance among those who
cannot afford it.
Public confidence in many of these leaders is
distressingly low. For example, only about a fifth
of Americans have a great deal of confidence in
the integrity of lawyers; only 11 percent have a
great deal of confidence . . . in people in charge of
running law firms and almost a third have hardly
any.5 Trust in business leaders is at its lowest
ebb since polls started measuring it a half century
ago, and they are now the least trusted group in
American society.6 Less than a quarter of surveyed
Americans trust the government in Washington
almost always or even most of the time, one of
the lowest measures in the last fifty years.7

The Educational Deficit


At the heart of the problem are issues of ethics,
which makes this topic of special relevance for
teachers of ethics. Our professions need for leaders
with inspiring visions and values has never been
greater. Yet our current educational system does
little to produce them. Law schools and continuing legal education programs have lagged behind
(Continued on page 12)

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

the

PROFESSIONAL LAWYER
Vol. 20 No.3

Publications BOARD OF EDITORS


CHAIR: John P. Sahl
Akron, Ohio
MEMBERS: Susan Saab Fortney
Lubbock, Texas
Arthur F. Greenbaum
Columbus, Ohio
Andrew M. Perlman
Boston, Massachusetts
Burnele V. Powell
Columbia, South Carolina
Ronald D. Rotunda
Arlington, Virginia
Mark L. Tuft
San Francisco, California

THE PROFESSIONAL LAWYER


EDITORIAL DIRECTOR: Jeanne P. Gray
Editor: Arthur Garwin

Art directoR: Jill Tedhams

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Subscription inquiries and orders regarding individual issues should
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reserves the right to select, edit and excerpt letters for publication.
Visit the Centers World Wide Web site at www.abanet.org/cpr.

Features
Lawyers and Leadership
Deborah L. Rhode.........................................................1
Expanding Screening Further
Robert A. Creamer........................................................3
Courtroom Technology and Legal Ethics:
Considerations for the ABA Commission on
Ethics 20/20
Michelle L. Quigley.....................................................18
Should States Ban Contingency Fee
Agreements between Attorneys General
and Private Attorneys?
Carson R. Griffis.........................................................22
Tough Decisionsor Easy Ones That
Half Your Colleagues Will Disagree With
Peter J. Winders..........................................................27
Crumbs from the Table
Lawrence J. Fox..........................................................28

The views expressed herein have not been approved by the House of Delegates
or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing policy of the American Bar
Association.
2010 by the American Bar Association
printed on recycled paper.

The Professional Lawyer is

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

Expanding Screening Further


Robert A. Creamer

t the 36th ABA National Conference on Professional


Responsibility held in June 2010, one of the proposals
debated was that Model Rule 1.10 be amended to
remove imputation within a law firm in the context of
concurrent representation where: (1) a timely screen is
erected; (2) the matters are not substantially related; (3) each
involved client is given timely notice; and (4) there is no
substantial risk that representation of any firm client will be
adversely affected.

Background
This proposal seeks to permit lawyers in law firms to avoid
automatic imputation of conflicts of interest in unrelated
matters in a manner that protects the legitimate interests of
existing clients and provides potential clients greater flexibility in choice of counsel. Presently, Model Rule 1.7(a) defines
a concurrent conflict of interest to include any representation directly adverse to another client. Unless the affected
clients grant informed consent, confirmed in writing, or the
conflict is personal to an individual lawyer, Model Rule
1.10(a) automatically imputes any conflict to every other
lawyer in a law firm. In this context, any and every are
taken literally. There are no exceptions. There are no de
minimus or geographic limits. A dog bite case in East Peoria
counts just as much as a billion Euro dispute in Paris.
In October 1999, the Drafting Group on Screening of
the Ad Hoc Committee on Ethics 2000 of the ABA Section
of Business Law submitted a proposal to the Ethics 2000
Commission to amend Model Rule 1.10 to permit screening
to remove imputation within a law firm of certain current
conflicts of interest. Specifically, the Drafting Committee
recommended that there be no imputation in the context of
concurrent representation if (i) screening is in place, (ii) the
matters are not related, (iii) each affected client is notified,
and (iv) there is no significant risk of diminution of the
loyalty owed by any lawyer in the firm to its clients.
In support of its proposal, the Drafting Group took issue
with the basic assumptions behind the then current version
of Model Rule 1.10(a): that every lawyer in every law firm
always knows everything about every matter in which every
other lawyer in the firm may be involved; and that every
lawyer with confidential information of a firm client that may
be material to a current adverse representation will inevitably
disclose that information to every other lawyer in the firm.
The Drafting Group also noted that the practice settings on which these assumptions were based had changed
dramatically. For example, the number of U.S. law firms with
50 or more lawyers increased from 19 in 1950 to over 700
in 1995, with approximately 70% practicing in multi-office
Robert A. Creamer is a lawyer in Evanston, Illinois.

firms. At the same time, large users of legal services fundamentally changed their relationships with lawyers, with many
large clients regularly engaging hundreds of law firms. These
developments were recognized in ABA Formal Opinion
93-372,1 which gave limited approval to prospective client
consents to future conflicts:
The impetus for seeking prospective waivers has grown
as the nature of both law firms and clients has changed.
In an era when law firms operated in just one location,
when there were few mega-conglomerate clients and
when clients typically hired only a single firm to undertake all of their legal business, the thought of seeking
prospective waivers rarely arose. However, when corporate clients with multiple operating divisions hired
tens if not hundreds of law firms, the idea of that, for
example, a corporation in Miami retaining the Florida
office of a national law firm to negotiate a lease should
preclude that firms New York office from taking an
adverse position in a totally unrelated commercial dispute against another division of the same corporation
strikes some as placing unreasonable limitations on the
opportunities of both clients and lawyers.2

Formal Opinion 93-372 was withdrawn by ABA Formal


Opinion 05-436 in view of the 2002 amendments to Model
Rule 1.7, which adopted new Comment [22] that provided
express guidance with respect to advance consents.3 (A copy
of the Drafting Groups letter dated October 5, 1999 to the
Ethics 2000 Commission follows this article.)
The Ethics 2000 Commission took scant, if any, notice
of the Drafting Groups proposal. The Commission did,
however, propose an amendment to Model Rule 1.10 that
removed the automatic imputation of so-called personal
interest conflictsconflicts between a lawyers own
personal interests and those of a client, but the circumstances
suggest that the conflict of the personally prohibited lawyer
is unlikely to influence other firm lawyers. The Commission
recognized that this was a substantive change in the Rule, but
believed that the amendment provides clients with all the
protection they need, given that the exception applies only
where there is no significant risk that the personal-interest
conflict will affect others in the lawyers firm.4 Nevertheless,
all other conflicts of interest remained subject to automatic
imputation, regardless of the circumstances.
The Commission also proposed to amend Model Rule
1.10 to permit lateral screening, the screening of private
lawyers moving between law firms, to remove automatic
imputation to avoid vicarious disqualification of a moving
lawyers new firm from a representation adverse to a client
of the moving lawyers former firm.5 In August 2001, by a

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

vote of 176 to 130, the ABA House of Delegates rejected this


proposal. Despite the ABA position on lateral screening, at
least 24 states adopted rules that permitted lateral screening.
Eventually, in February 2009, the House revisited the issue
and narrowly approved a lateral screening rule, now Model
Rule 1.10(a)(2), which is substantially similar to the original
Ethics 2000 draft.

The Lawyers World Continues to Change


Although the 1999 Drafting Group proposal to amend Model
Rule 1.10 was ignored by the Ethics 2000 Commission,
subsequent events have proven the proposal prescient. In
the past decade, the trends in the provision of legal services
noted by the Drafting Group have continued. If anything,
those trends appear to have accelerated. Law firms continued
to grow even larger. For example, by 2006, the Baker &
McKenzie firm had more than 3,500 lawyers, DLA Piper had
more than 3,300 lawyers, and at least other 20 firms had more
than 1,000 lawyers.6
And large clients continued to use more different law
firms. Long-term relationships between law firms and
their clients have become even more attenuated, and many
corporate clients are more interested in retaining individual
lawyers than specific firms.7 And many in-house general
counsels have publically called legal services commodities
and described lawyers and law firms as fungible. Indeed,
as Professor Thomas Morgan observes: many lawyer-client
relationships are likely to remain less like marriages and
more like one-night stands.8 For lawyers in law firms, these
changes have meant the end of a culture where nobody
starves to a business model where partners are more akin to
individual entrepreneurs, compensated primarily on the basis
of their own business.9 There is nothing to suggest that these
changes in the legal landscape are temporary.

The Rationale for Automatic Imputation


The changes in the legal services landscape also challenge
the assumptions underlying the notion of automatic imputation of a conflict of interest to all affiliated lawyers. Comment b to Restatement of the Law Third, The Law Governing
Lawyers 123 (2000) gives the rationale for automatic
imputation of conflicts, citing three concerns. First, affiliated
lawyers are said to share each others interests because a fee
for one lawyer, for example, normally benefits all lawyers in
the partnership, which allegedly creates an incentive in affiliated lawyers to cooperate to favor one client over the other.
Aside from the questionable assumption that firm lawyers
would engage in improper conduct, such nefarious cooperation seems most unlikely in a contemporary eat what you
kill compensation scheme.
Second, Comment b states that affiliated lawyers ordinarily have access to files and other confidential information
about each others clients. Third, the comment observes that
a client would often have difficulty proving that an adverse
representation by an affiliated lawyer was wholly isolated.
These latter concerns are both issues of preserving client

confidentiality. As a practical matter, it is improbable that


lawyers in most firms, much less modern mega firms, have
easy access to the confidences of every firm client. In any
event, concerns over access to client information can be addressed and resolved by appropriate and effective screening.
Ironically, automatic imputation is a latecomer to legal
ethics rules. It was not part of the 1908 ABA Canons of
Professional Ethics. The notion first appears in ABA Formal
Opinion 3310 in a situation involving a two-partner firm. The
opinion concludes: The relations of partners in a law firm
are so close that the firm, and all the members thereof, are
barred from accepting any employment, that any one member
of the firm is prohibited from taking.11 The automatic prohibition was first codified as DR 5-105(D) of the 1969 ABA
Model Code of Professional Responsibility: If a lawyer is
required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate, or
any other lawyer affiliated with him or his firm may accept
or continue such employment. This Code provision is the
antecedent of current Model Rule 1.10(a).
It is important to note that in both the Restatement and
the ethics rules provisions, loyalty to a client is not given as
a rationale for automatic imputation. There is good reason
for this apparent omission. The notion of loyalty to a client
is derived from the law of agency.12 Under agency law, the
scope of that duty is typically limited to matters connected
with the agency relationship.13 Thus, if the scope of a lawyers duty of loyalty were consistent with the law of agency,
it would be limited to the matter for which the lawyer has
been retained. Even though Comment [6] to Model Rule 1.7
extends the duty of loyalty to unrelated matters in the case of

Many lawyer-client relationships are


likely to remain less like marriages
and more like one-night stands.
an individual lawyer, the reasons given to justify imputation
do not support the automatic imposition of that duty on all
affiliated lawyers.

There May Be No Conflict to Impute


The reference to Comment [6] to Model Rule 1.7 raises
the related, but different, issue of whether a representation
adverse to a current client in a wholly unrelated matter
should be considered a conflict of interest at all. Professor
Morgan explores this question in a thoughtful 1996 article,
where he shows that the prohibition of any representation
adverse to a current client, regardless of any connection to the
lawyers representation of that client, evolved during a period
when the practice of law was much different from what it
has become.14 He also argues that the current rule does not

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

simply codify well-established case law, but rather applies


dicta from cases that involved very different factual settings
from those to which the rule is now typically applied. Professor Morgan observes that application of the strict current
client rule can deprive litigants of their counsel of choice in
circumstances where the other firm client faces no credible
harm from the adverse representation, but may well refuse to
consent for tactical reasons.
In some legal regimes, adversity against a current client
in an unrelated matter is simply not a disqualifying conflict.
For example, Section 3.2 of the Council of Bars and Law
Societies of Europe (CCBE) code of Conduct for European
Lawyers engaged in transnational practice defines conflicts
of interest in terms of the same matter. In a similar fashion,
Rule 3.01 of the Solicitors Code of Conduct 2007 for
England and Wales limits the prohibition against conflicts
of interest to the same or related matters. In July 2010,
the Solicitors Regulatory Authority of the United Kingdom
amended Rule 4.05 of the Code to permit a firm to accept
matters adverse to a client without consent of the client if
confidential information material to the clients representation if appropriate safeguards or information barriers are
timely implemented.
Within the United States, current Texas Disciplinary Rule
1.06 allows a lawyer to be adverse to a current client in an
unrelated matter without client consent.15 [The Fifth Circuit
has nevertheless decided that the Texas rule may not be followed in the federal courts in Texas16 and there is pending a
proposed rule change that would require client consent. 17

Client Consent Is Not a Solution


Some have suggested that the negative effects of automatic
imputation can be remedied easily by client consent. But
consent is not predictable and offers no reliable way for
lawyers and other clients to plan their affairs. At the outset,
clients can withhold consent for any reason or no reason.
And experience suggests that many, perhaps most, clients
will refuse to consent for what they consider the tactical advantage of denying the other party of their counsel of choice,
without regard to whether the matters in question are related.
Even if a client gives initial consent, that consent may be
revoked at any time.18 Whether the revocation is justified
or will prevent a lawyer from continuing to represent the
other client normally depends on the circumstances, but will
inevitably result in additional delay and expense. Routinely
seeking advance consent from new clients could enable lawyers or law firms to ameliorate the risk of a clients refusal
to consent if a later conflict in an unrelated matter arises,
but advance consents are still subject to revocation as well
as disputes over whether the consent was valid or covers the
conflict that eventually arose.
Another practical problem with consent is the need to
protect client information. Model Rule 1.7(b)(4) requires that
consent to a conflict of interest be informed. And Model
Rule 1.0(e) defines informed consent to denote agreement
after the lawyer has communicated adequate information

and explanation about the material risks and of and reasonably available alternatives to the proposed course of conduct. Given that Model Rule 1.6(a) protects all information
relating to the representation of a client, it may be difficult
for a lawyer to disclose sufficient information about one

Even if a client gives initial


consent, that consent may be
revoked at any time.
client to another to obtain informed consent. ABA Formal
Opinion 90-35819 (Sept. 13, 1990) recognized this problem
and held that because the lawyer in the situation presented
was precluded from disclosing the information necessary to
make the consent informed, the conflict was nonconsentable.
Formal Opinion 05-436 (mentioned above), which generally
recognized advance consents to future conflicts, also notes
that a clients informed consent to a future conflict, without
more, does not constitute the clients informed consent to
the disclosure or use of the clients confidential information
. . . .20 Even with an advance consent by the existing client,
a lawyer may be unable to disclose sufficient information to
the prospective client, as the other affected client who must
consent under Model Rule 1.7(b)(4), to obtain valid informed
consent.

Screening Has Been a Success


Screening has been recognized for decades. Long before
Model Rule 1.10 was amended in February 2009 to permit
screening of private lateral lawyers, Model Rule 1.11 allowed
lateral screening for former government lawyers; and Model
Rule 1.12 provided for the screening of former judges, arbitrators and law clerks to prevent imputed disqualification of
their new law firms in matters in which they participated personally and substantially. Model Rule 1.18(d) permits screening of lawyers who received disqualifying information from
prospective clients. Comment [4] to Model Rule 1.10 permits
screening of nonlawyers such as paralegals and secretaries,
as well as former law student clerks. ABA Formal Opinion
88-35621 regarding temporary or contract lawyers, recognized screening as a proper method of preventing vicarious
disqualification when such lawyers moved among law firms.
In addition, Restatement 124(2) allows screening to remove
imputation with respect to a former-client conflict when there
is no substantial risk that the confidential information of the
former client will be used with material adverse effect on the
former client.
Since the 1980s, at least 24 states have adopted ethics
rules to permit screening of lateral lawyers moving between
private firms. And virtually every state permits screening of
nonlawyer personnel to prevent vicarious disqualification.

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

With the prevalence of screening in various contexts for


many years in almost every state, there appears to be little,
if any, empirical reason to believe that lawyers cannot be
trusted to comply with an appropriate screen. Clients appear
to have experienced few, if any, problems accepting the
concept or practice of screening.22 By any rational measure,
screening has been a success.

The Courts Are Leading the Way


The experience of the courts with lateral screening is instructive when considering the proposal to permit screening to
remove automatic imputation in unrelated matters. In 1983,
the Seventh Circuit suggested the elements of an acceptable
screen to remove automatic imputation in a lateral situation
in LaSalle National Bank v. County of Lake,23 seven years before the Illinois lateral screening rule was adopted. In 1999,
Peter Moser observed that trial and appellate courts in the
Second, Third, Sixth, Seventh, Eleventh and Federal Circuits
recognized lateral screening in appropriate situations even
when otherwise applicable state ethics rules did not provide
for screening.24 Unfortunately, it was another decade before
the ABA followed the lead of the courts and finally amended
Model Rule 1.10.
Once again, the courts are leading the way. Three relatively recent decisions confirm that screening can remove
automatic imputation when a law firm may be adverse to an
existing client in an unrelated matter.25
It is not surprising that the courts have taken leadership
on this issue. It is the courts that must deal with the reality of
tactical disqualification motions that have nothing to do with
the merits of the litigation before the court. Such motions
waste scarce resources, imposing needless expense and delay
on the courts and clients alike. Yet such motions will continue to be made as long as there is no practical way to remove
automatic imputation in unrelated matters imposed by Model
Rule 1.10(a). It is time for the ABA to change that rule in the
interests of clients and the courts as well as lawyers.

Commission Ethics 20/20


Follow the work of the ABA Commission on Ethics
20/20 at http://www.abanet.org/ethics2020/
home.html. The Commission seeks comments on
issues papers posted to the site. It also invites
interested parties to join its list serve to receive
periodic updates and participate in discussions
on the Commissions work, and to learn about
meetings, public hearings, roundtables, and
educational opportunities.

Endnotes
1. ABA Comm. on Ethics & Profl Responsibility, Formal Op. 93372 (April 16, 1993).
2. Id.
3. See further discussion of Formal Opinion 05-436 infra.
4. American Bar Association, A Legislative History: The
Development of the ABA Model Rules of Professional Conduct, 1982-2005, at 253 (2006).
5.Screening of former government lawyers was already allowed by
Model Rule 1.11.
6. Thomas D. Morgan, The Vanishing American Lawyer 101
(2010).
7. Milton C. Regan, Jr., Eat What You Kill: The Fall of a
Wall Street Lawyer 33 (2006).
8. Morgan, supra note 6, at 123.
9. Regan, supra, note 7 at 26, 42.
10. ABA Comm. on Profl Ethics, Formal Op. 33 (Mar. 2, 1931).
11. Id.
12. See Restatement of the Law Third, The Law Governing
Lawyers 16, Comment e (2000).
13. See Restatement of the Law Third, Agency 8.01 (2006);
and Restatement of the Law Second, Agency 390, Comment
d (1958) (agent is not, as such, in fiduciary relation with the principal
as to matters in which agent is not employed).
14. See Thomas D. Morgan, Suing a Current Client, 9 Geo. J.
Legal Ethics 1157 (1996).
15. See In re Southwestern Bell Yellow Pages, Inc., 141 S.W.3d 229
(Tex. App. 2004).
16. See In re Dresser Industries, Inc., 972 F.2d 540 (5th Cir. 1992).
17. See proposed amendments to Texas Disciplinary Rules of
Professional Conduct at http://www.supreme.courts.state.tx.us/rules/
rules.asp (last visited Oct. 6, 2010).
18. Restatement of the Law Third, The Law Governing
Lawyers 122, Comment f (2000).
19. ABA Comm. on Ethics & Profl Responsibility, Formal Op. 90358 (Sept. 13, 1990).
20. ABA Comm. on Ethics & Profl Responsibility, Formal Op. 05437 at 5 (May 11, 2005).
21 ABA Comm. on Ethics & Profl Responsibility, Formal Op. 88356 (December 16, 1988).
22. Geoffrey C. Hazard, Jr. and W. William Hodes, The Law
of Lawyering 14.3, at 14-13 (3d ed. 2010 Supplement).
23. 703 F.2d 252, 259 (7th Cir. 1983) (an appeal from a district
court in Illinois).
24. M. Peter Moser, Screening of Personally Disqualified Lawyers
to Avoid Law Firm Disqualification Should Be More Widely Employed, 1999 Symposium Issue of The Professional Lawyer 159
(1999).
25. See Boston Scientific Corp. v. Johnson & Johnson Inc., 647 F.
Supp. 2d 369 (D. Del. 2009); Wyeth v. Abbott Laboratories, 2010
U.S. Dist. LEXIS 11032, 2010 WL 502995 (D.N.J. Feb. 8, 2010);
and Air Products and Chemicals, Inc. v. Airgas, Inc., 2010 Del. Ch.
LEXIS 35 (Mar. 5, 2010). See also Elonex I.P. Holdings, Ltd. v.
Apple Computer, Inc., 142 F. Supp. 2d 579 (D. Del. 2001) (disqualification denied in unrelated matter where firm had advance waiver
and instituted screen).

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

October 5, 1999
American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
541 North Fairbanks, 14th Floor
Chicago, Illinois 60611
Attention: Susan Campbell
Re: Proposed Rule 1.10Public Discussion Draft
Ladies and Gentlemen:
This letter is being sent in response to the publication by the Ethics 2000 Commission of its Draft for Public Comment dated March 23, 1999 of Model Rule 1.10.
These comments have been prepared by the Drafting Group on Screening of the Ad Hoc Committee on Ethics 2000, Section of Business Law of the American Bar Association. The Ad Hoc Committee on Ethics 2000 is
composed of the members of the Section of Business Law listed at the end of this letter, including the Chairs of
the principal Committees of the Section on practice, professionalism and ethics, the Committees on Conflicts of
Interest, Counsel Responsibility, Law Firms, Lawyer Business Ethics, Corporate General Counsel and the Ad Hoc
Committee on Multidisciplinary Practice, as well as other Section leaders and members knowledgeable in the field,
including two members of the ABA Standing Committee on Ethics and Professional Responsibility (the Ethics
Committee). A draft of this letter was circulated for comment among the members of the Ad Hoc Committee and
the Officers of the Section. A substantial majority of those who have reviewed the letter in draft form have indicated their agreement with the views expressed. However, this letter does not represent the official position of the
Section nor does it necessarily reflect the views of all of those who have reviewed it.
We recommend that there be no imputation in the context of concurrent representation if (i) screening is in place,
(ii) the matters are not related, (iii) each affected client is notified, and (iv) there is no significant risk of diminution
of the loyalty owed by any lawyer in the firm to its clients. We also support the proposal of the Ethics Committee to
modify the Commissions Proposed Rule 1.10 to allow for screening when a personally prohibited lawyer joins a
firm. We believe, however, that screening should also be allowed to avoid the imputation of current conflicts.
In its Proposed Rule 1.10, the Commission does not adequately recognize the enormous changes in the past 20
years in the practice settings in which legal services are provided and in the relationships between lawyers in
private practice and the large users of legal services. Because of that, the proposed rule continues to require the
imputation of conflicts to all lawyers in all firms in all circumstances of adverse representation involving current
clients.
In our view, the Commissions Proposed Rule 1.10 treatment of screening is based on two presumptions that are
not valid. The first presumption, as Robert Creamer points out in his Comments to the Commission dated August
5, 1999, is that every lawyer in every law firm always knows everything about every matter in which every other
lawyer in the firm may be involved. This is true only in a solo practice setting. It may be substantially true in small
firm settings, but it obviously is wrong in large multi-office law firms. There is then the further incorrect presumption, ordinarily rebuttable only in the case of government lawyers, that lawyers who have confidential information
of a firms client that may be material to a current adverse matter will inevitably disclose that information within
the firm. This is also wrong and is a misconception of the response by lawyers to their obligations of confidentiality. See Brian Redding, Comments to the Commission regarding Proposed Model Rules 1.7, 1.8, 1.9, & 1.10, August
4, 1999 (for a convincing argument that disclosure of client confidential information does not occur when a formal
screening mechanism is in place).
The practice settings on which these presumptions were based have changed dramatically. By 1950, only 19
firms in the country consisted of 50 or more lawyers and by 1970, a year after the adoption of the Model Code of

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or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
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Professional Responsibility, that figure had increased to only 46 firms. Robert L. Nelson, Practice and Privileges:
Social Change and the Structure of Large Law Firms, Am. B. Found. Res. J., 1981 Winter, 105-7,109. In 1980, 257
firms consisted of 50 or more lawyers and by 1995 there were 702 firms in the United States with over 50 lawyers. Clara N. Carson, The Lawyer Statistical Report, The U.S. Legal Profession in 1995, Am. B. Found, (1999),
(Statistical Report). Translated into numbers of lawyers, 27,190 lawyers practiced in firms of 50 or more lawyers
in 1980. By 1995 that number had increased to 105,316 lawyers, approximately 70% of whom practiced in multioffice firms. Statistical Report. Prior to the adoption in 1969 of the ABA Model Code of Professional Responsibility, few firms maintained offices in other states. See Comment, Regulating Multi-State Law Firms, 32 Stan. L. Rev.
1211-14 (1980). By 1995, there were 280 firms of over 50 lawyers that maintained offices in more than one state.
These firms consisted of approximately 70,000 lawyers. Statistical Report.
The practices of the large users of legal services also have changed as have their relationships to their lawyers.
Large multi-office conglomerate clients through their highly sophisticated employed attorneys now regularly engage many different law firms and different lawyers for representation in different substantive areas. For instance,
several years ago General Motors was reported historically to have used 800 firms but intended to reduce that
number to 300. Many of these clients also consider it a good business practice to hire lawyers and not law firms,
and to hire these lawyers after a beauty contest or a response to a request for bids. This has resulted in changing the nature of the loyalty owed to these clients. As early as 1981, commentators concluded that the concept of
legal friend in these circumstances is outmoded. See Developments in the LawConflicts of Interest in the Legal
Profession, 94 Harv. L. Rev. 1244, 1302 (1981).
These developments were recognized by the Ethics Committee in its Formal Opinion 93-372, dated April 16, 1993,
addressing the changes in legal practice that have also prompted the recourse to waivers of future conflicts, when it
stated:
The impetus for seeking prospective waivers has grown as the nature of both law firms and clients has
changed. In an era when law firms operated in just one location, when there were few mega-conglomerate clients and when clients typically hired only a single firm to undertake all of their legal business,
the thought of seeking prospective waivers rarely arose. However, when corporate clients with multiple
operating divisions hired tens if not hundreds of law firms, the idea of that, for example, a corporation in Miami retaining the Florida office of a national law firm to negotiate a lease should preclude
that firms New York office from taking an adverse position in a totally unrelated commercial dispute
against another division of the same corporation strikes some as placing unreasonable limitations on the
opportunities of both clients and lawyers.
Although the opinion continues by endorsing the view that such a situation presented a conflict, it recognizes that
there was nothing in the example that should prevent a prospective waiver from being effective.
The analysis and understanding of the duty of loyalty to clients has also lagged behind the reality of practice and
results in a continuing misapprehension of when a duty of loyalty might be breached. Lawyers must serve their clients with competence, independent judgment, to the best of their ability and with undivided loyalty. This includes
maintaining the clients confidences. The presumption that the lawyers in the situation in the example in Opinion
93-372 will not do so is unsupported and, in the circumstances of many large clients, is unwarranted.
An additional change to the practice of law has been the recent dramatic increase in the lateral movement of
attorneys between firms. According to a recent national survey conducted by the National Association for Law
Placement, the movement of lawyers from firm to firm during their careers has become increasingly commonplace,
and firms are now hiring new attorneys laterally at a rate that surpasses entry-level hiring. Martha Neil, More Firms
Eschew New Grads for Lateral Hires, CHI. DAILY LAW BULLETIN, Feb. 18, 1999, at 1. There appear to be
many reasons for this phenomenon. For example, many lawyers are seeking greater autonomy, more interesting
work, higher compensation or more flexible hours. Other lawyers relocate due to family relocations or law firm
downsizing, dissolution or bankruptcy. Whatever the cause, strict application of the current Rule 1.10 without
screening restricts the ability of these lawyers to find new positions without unnecessary delay and disruption. The

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increasingly common lateral movement of lawyers between firms requires that Rule 1.10 be reexamined to operate
properly in the new practice settings.
In spite of these developments, there is no dispute between lawyers and their clients over the goals and principles
embodied in the practice of law. Clients must be assured of undivided and undiminished loyalty on the part of the
individual lawyer or lawyers actually serving them and be assured that client confidences will not be misused.
The general rule of imputation, however, by employing presumptions that are not now valid, does not necessarily
further these goals; rather, it unnecessarily ignores the interests of clients and restricts the mobility of lawyers.
Permitting a law firm to be adverse to a current client in an unrelated matter is not unknown. Since January 1990,
Rule 1.06(b)(1) of the Texas Disciplinary Rules of Professional Conduct has provided that a lawyer could represent
a client adversely to another client of the firm if the matters in question were not substantially related. In such
situations, the firm may proceed without notice to or consent from the other client. Nor is screening required by the
Texas rule. (The Fifth Circuit has declined to recognize this rule in federal cases. See In re American Airlines, Inc.,
972 F.2d 605, 610 (5th Cir. 1992)). In contrast, the Ad Hoc Committees proposal would allow a firm to proceed
with an adverse representation in an unrelated matter only after written notice to each affected client and the
imposition of an effective screening procedure. The firms loyalty would also be subject to review under the five
factors discussed in the proposed comment. Viewed in context, the Ad Hoc Committees proposal offers a practical
solution to the technical conflicts that arise from contemporary practice while preserving protection of the legitimate concerns of firm clients.
As stated above, we support the proposal of the Ethics Committee. Our proposal would build on those suggested
changes. For convenience, we have shown below, first, the Ethics 2000 Commission proposal in which material
added to the current Model Rule has been underlined and deletions from the current Model Rule have been struck
through; second, additions suggested by the Ethics Committee (and not deleted by the Ad Hoc Committee
proposals) are bold printed, and its deletions are [bracketed]; and third, the additions that we present are shown
by double underlining.
Rule 1.10
IMPUTED DISQUALIFICATION: GENERAL RULE
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when the lawyer
knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by
Rules 1.7(a), 1.8(c), or 1.9 or 2.2, [unless the prohibition is based on a personal interest of the prohibited lawyer
and does not present a significant risk of materially limiting the representation of the client by the remaining
lawyers in the firm] except as permitted in paragraphs (b) and (c).
(b) If the prohibition is based on a personal interest of the prohibited lawyer and does not present a
significant risk of materially limiting the representation of the client, any of the remaining lawyers in the
firm may represent the client.
(c) The provisions of paragraph (a) shall not be applicable to conflicts arising under either Rule 1.7 or 1.9 if:
(1) The prohibited lawyer is screened from any contact with the new matter in accordance with paragraph
(f);
(2) the lawyer undertaking the new matter is screened from any contact with any disqualifying matter in
accordance with paragraph (f);
(3) any disqualifying matter and the new matter are not the same or substantially related;
(4) there is no significant risk of a diminution of the obligation of loyalty by a lawyer of the firm to its
clients; and

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(5) in the case of conflicts arising under Rule 1.7, each affected client is advised in writing of the circumstances warranting the implementation of screening procedures and of the actions taken to comply with
this rule.
[(b)](d) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter
representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by rules 1.6 and 1.9(c) that is material to
the matter.
[(c)](e) A disqualification prescribed by paragraph (a) may be waived by the affected client under the conditions stated in rule 1.7.
(f) For purposes of this rule, a lawyer in a firm will be deemed to have been screened from any contact with a
matter if:
(1) the lawyer is specially apportioned no part of the fee therefrom; and
(2) the firm adopts procedures that are reasonably likely to be effective in preventing material information
from being disclosed to the screened party or parties.
We also suggest that the proposed Comment to Proposed Rule 1.10, specifically proposed Comment [5], be modified to conform to our proposed Rule and that there be added to the proposed Comments to Rule 1.10, the following (additional commentary proposed by the Ethics Committee is bold printed and additional commentary we
present appears as normal text):
COMMENT:
[7A] For purposes of this Rule and Rules 1.11, 1.12 and 1.18, effective screening requires both that the
lawyer is not specially apportioned any part of the fee from the representation adverse to the former client,
see Comment [5] of Rule 1.11, and that procedures are adopted and followed that are reasonably likely to
prevent material information from being disclosed by the prohibited lawyer to the firm or its client and its
client. Effective screening procedures will vary according to the situation, but at a minimum will entail an
agreement by the prohibited lawyer not to participate in or discuss the matter with any other firm member
and adherence of the prohibited lawyer to that agreement, notice to all lawyers associated with the firm of
this requirement, and, to the extent feasible, isolation of sensitive documents and other information relating
to the matter.
[ ] The rule in paragraph (a) does not prohibit representation where neither question of client loyalty nor protection
of confidential information is presented. Whether a lawyer would be deemed materially limited in pursuing a matter on behalf of a client because of loyalty to another client of the firm would depend upon several factors, including (i) the size of the firm; (ii) the number of the firms offices and where the lawyers representing each client are
located; (iii) the type of work the firm has done or is doing for each client in question; (iv) the relationship between
the firm and each client; (v) the characteristics of each client; and (vi) the relationship between the clients in question. For example, where a lawyer in a firms New York office represents a particular client, and another lawyer
in the firms San Francisco office represents another client, the risk of each representation affecting the other is
smaller than if both lawyers worked in the same office. Other divisions within law firms, such as departments and
practice groups, further reduce the risk that unrelated representations will adversely affect the relationships with the
clients in question. Also, when evaluating the risk of diminution of loyalty under factor (iii), if a lawyer at the firm
represents a client with respect to an isolated minor matter and the firm does not act as that clients regular outside
counsel, it is less likely such representation would materially limit the representation by another lawyer at the firm

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10

of another client in an unrelated matter. However, the conclusion perhaps would be different with respect to the
firms representation of a particular client in an ongoing matter or litigation. Such concerns would also be evaluated
under factor (iv). Where a client regularly engages a firm to perform legal services and there is an expectation of an
ongoing relationship, the risk of such representation affecting the representation of another client in an unrelated
matter is greater than where an assignment is obtained from a client through a beauty contest.
[ ] In the case of conflicts arising under Rule 1.7, Rule 1.10(c)(5) requires the firm to advise each affected client
of the screening procedure being implemented. Following receipt of the notice of the screen, the new client would
have the opportunity to engage alternative counsel if it believed the firms obligation of loyalty to it was diminished
or confidential information was at risk because of the firms representation of the other client. Whether the firms
representation of the initial client would be prejudiced because of the new client matter must be taken into consideration under factor (iii) of Comment [ ] above, e.g., such client may not be in a position to change counsel.
[ ] Rule 1.10(f) establishes basic requirements for effective screening. In practice, screening procedures will vary
according to the particular situation and law firm. In evaluating whether a particular screening procedure is effective, several of the factors listed in Comment [ ] would be relevant, including (i) the size of the firm; and (ii) the
number of the firms offices and where the lawyers representing each client are located.
We appreciate the opportunity to submit comments and are available to meet with the Commission or your
Reporter to respond to any questions.
Respectfully submitted,
Larry P. Scriggins, Chair
Ad Hoc Committee on Ethics 2000
Drafting Group on Screening
Robert L. Berner, Jr.
Robert A. Creamer
Larry P. Scriggins
Ann Yvonne Walker
By____________________________
Robert L. Berner, Jr.
Members of the Ad Hoc Committee
on Ethics 2000:
Larry P. Scriggins, Chair
David Albenda
Harold S. Barron
Robert L. Berner, Jr.
Robert A. Creamer
Richard E. Gutman
Richard E. V. Harris
Dennis J. Lehr
Simon M. Lorne
Bruce A. Mann
Frank D. Mayer, Jr.
Charles E. McCallum
M. Peter Moser
Robert E. OMalley
Marshall L. Small
A. A. Sommer, Jr.
Charles H. (Hank) Still
Ann Yvonne Walker

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11

Lawyers and Leadership


(Continued from page 1)

other institutions in developing leadership skills. The recent


recession has caused cutbacks in most of the few law firms
that offer such training.8 By contrast, corporate spending on
leadership development totals forty-five-billion dollars annually and at least seven hundred academic institutions have
leadership programs, largely at the undergraduate level.9
As Gregory Williams noted while president of the Association of American Law Schools, schools are happy to take
credit for launching the careers of their prominent graduates,
but have not generally focused attention on fostering leadership . . . curricula.10 Lawyers leadership responsibilities are
a dominant theme in extracurricular programs, commencement speeches, and alumni awards, but the topic is missing in
action in day-to-day teaching. Ironically, of the mission statements available on law school websites, 38 include fostering
leadership, but only two of these schools are actually offering
a leadership course.11
Explanations for this neglect mirror those traditionally given for the marginalization of professional ethics.
Legal educations still inadequate treatment of the moral
dimensions of professional life parallels and reinforces its
devaluation of leadership development. Many of the urgent
challenges facing lawyers as leaders involve ethical concerns
that law schools have not effectively addressed elsewhere in
the curricula. Let me begin by reviewing some of the shared
obstacles to education in both leadership and professional
responsibility, and conclude with some promising responses.

II. Education in Ethics and Education in Leadership : Obstacles and Overlap


Legal Ethics in Legal Education

Ethics in legal education was traditionally notable for its absence. Most faculty treated the subject as beneath our notice
or . . . [beyond] our capacities.12 Early courses amounted to
little more than platitudinous exhortation; general piffle
was the general assessment.13 The prevailing assumption
was that the right kind of law student already knows what
constitutes moral and ethical conduct and . . . a formal course
in Legal Ethics will not supply the proper sort of character
training for students who are not the right kind.14 American
bar examiners took a similar view. Questions were infrequent
and typically invited undemanding reflection on topics like
what the [states] Code of Professional Responsibility
mean[s] to me. It is not clear anyone read the answers.15
Over the last several decades, much has changed but
too much has remained the same. In the United States, law
schools must offer instruction in the legal profession and
its responsibilities as a condition of accreditation, and state
bars generally include a separate examination on the rules
of professional conduct.16 In other countries, the subject is
often relegated to post-graduate practical training, and is
still fighting for an academic toehold.17 But even where legal

ethics is required, it generally remains at the curricular periphery, confined to a single required course and discounted
by many as mushy pap.18 Some of these courses offer
little more than preparation for the law of lawyering on the
bar exam; they are, in effect, legal ethics without the ethics.
Like most research in the field, a recent influential report
by the Carnegie Foundation indicted legal education for its
inadequate attention to the moral dimensions of professional
life.19 Although ethical questions arise in every substantive
area of law, faculty tend to treat professional responsibility as
someone elses responsibility. Many remain skeptical about
the mission. Federal judge and law professor Richard Posner
put still common views with uncommon candor: as for the
task of instilling ethics in law students . . . I can think of few
things more futile than teaching people to be good.20
I doubt that many of us in the field see that as our mission,
or labor under the illusion that we could do much to advance
it. Rather, our goals are more modest and have been defended
with sufficient regularity that they dont need extensive
treatment here. One is to build students understanding of
the rules of conduct before they are at risk of inadvertently
violating one. A second is to encourage future leaders of the
profession to consider where the lines should be and whether
bar governance structures effectively serve the publics
interest. It makes sense to address those issues in law school
before individuals have a vested interest in coming out one
way or another.
From that perspective, the task of ethics education looks
far less hopeless. Most research suggests that significant
changes occur during early adulthood in peoples strategies
for dealing with moral issues, and that well-designed curricula can assist the developmental process.21

Leadership Education
Similar points are applicable to leadership education. Although most academic institutions consider preparing leaders
as central to their mission, the creation of leadership curricula
and texts has lagged behind.22 The traditional assumption has
been, as management expert Peter Drucker once famously
put it, that leadership cannot be taught or learned.23
Yet contemporary research is to the contrary, and Drucker
ultimately revised his view.24 Studies of twins suggest
that about 70 percent of leadership skills are acquired, not
genetically based, and decades of experience with leadership development indicates that its major capabilities can
be learned.25 Indeed, as a prominent expert notes, it would
be strange if leadership were the one skill that could not be
enhanced through understanding and practice.26
It is, of course, true that for thousands of years, leaders
have developed without formal education in the qualities that
made them effective. But informal methods of learning have
been common, and many leaders have learned from history,

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12

example, and experts in related fields. Martin Luther King, Jr.


studied communication and nonviolent techniques of conflict
resolution.27 John F. Kennedy worked hard on developing the
personal magnetism he observed among Hollywood actors.28
Barack Obama looked for guidance in historical accounts of
Franklin Roosevelts first 100 days as president.29
Yet for many lawyers, informal education often falls short.
Large law firms, in-house counsel offices, government agencies, and public interest organizations are run by individuals
who generally have had no management training, and whose
skills as lawyers do not necessarily meet the demands of leadership. As one managing partner summed it up: the historical
model for law firms is to put [people] in a leadership position . . .
often not because of leadership skills but because of [rainmaking] . . . and hope they dont drive into a ditch.30 This inattention
to leadership development raises particular concern in light of a
recent statistical study finding that the most powerful predictor
of large firm profitability is the quality of partners leadership
skills.31 Similar points apply to leaders in the nonprofit sector.
In my recent survey of the nations most prominent public interest organizations, one director put it rhetorically: Why didnt I
go to business school.32
In fact, that would not necessarily have solved his problem. Harvard Professors Nitin Nohria and Rakesh Khurana
note that despite significant improvements over the last
decade, the subject still is at the periphery rather than the
center of most [business] schools that profess to educate the
leaders of the future.33 Attention to ethical issues in leadership is in particularly short supply. In surveys by the Aspen
Institute, graduates of MBA programs report that confidence
in their ability to manage value conflicts actually falls during
their time as students.34 Only about two fifths of surveyed
students believed that business schools were doing enough to
enable them to address such ethical issues.35
Law schools cannot afford to replicate this neglect, yet
most give leadership even less attention. Society, as well as
the profession, has a large stake in addressing that oversight.
As Robert Gordon has noted, in any democracy, the legal
profession plays pivotal roles both in amplifying and constraining authority.36 In the public sector, lawyers shape and
enforce law. In the private sector, they orchestrate responses
to law through compliance, evasion, resistance, and reform.
Moreover, because law is to large extent a self-regulating occupation, its leaders have special responsibility to act for the
public, not just the profession, when its own governance is at
issue. If, as experts have long argued, the organized bar has
not always lived up to that responsibility, then legal education is part of both the problem and the solution.

III. Learning Leadership


Defining Leadership

How then can we teach lawyers to lead? A threshold question


is what we mean by leadership, and what core competencies
are central to its exercise. This issue has generated a cottage
industry of commentary, and by some researchers accounts, over 1,500 definitions and forty distinctive theories.37

Although popular usage sometime equates leadership with


power or position, most experts draw a distinction. They
view leadership in terms of traits, processes, skills, and
relationships. John Gardner, founder of Common Cause,
famously noted that heads of public and private organizations
often mistakenly assume that their status has given them a
body of followers. And of course it has not. They have been
given subordinates. Whether the subordinates become followers depends on whether the executives act like leaders.38
Moreover, just as many high officials are not leaders, many
leaders do not hold formal offices. Mahatma Gandhi and Martin Luther King, Jr. led from the outside. In essence, leadership requires a relationship, not simply a title. Leaders must be
able to inspire, not just compel or direct their followers.39
What enables leaders to inspire commitment? Do they
share identifiable personal characteristics and styles that are
effective across varying situations? The traditional assumption was that they did. Early Greek, Roman, and Chinese
philosophers generally assumed that leadership required exceptional personal qualities. A 10th-century Persian theorist
distilled from these philosophical accounts a list of traits that
looks remarkably similar to those generated by contemporary

Attention to ethical issues


in leadership is in particularly
short supply.
surveys.40 Historian Thomas Carlyle famously argued that
behind every great institution and social movement was the
shadow of a great man, and Max Weber elaborated the
charismatic styles that he believed enabled their success.41
Yet most recent research casts doubt on whether effective leaders are cut from the same mold. Over the last half
century, leadership scholars have conducted more than 1,000
studies in an attempt to define the ideal leaders. Summarizing this work, a Harvard Business Review overview
concludes that it has produced no clear profile. 42 Nor is the
much celebrated quality of charisma necessarily related to
effective performance. Indeed, some studies find that the
leaders of the most continuously profitable corporations
have tended to be self-effacing and lacking in the qualities
commonly considered charismatic.43 In Druckers view, it
is a mistake for organizations to look for some boardroom
Elvis Presley. Genuine leadership, he argued, has little to
do with charisma. It is mundane . . . and boring. Its essence
is performance.44
Building on such research, many contemporary experts
advance some version of a contingency theory of leadership. This framework places the key to effectiveness in a
match between what the circumstances demand and what
an individual has to offer.45 Situations vary in terms of the

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13

capabilities and expectations of followers and the power and


resources of leaders. This is not, however, to deny all possibility of generalization. It is, as Nohria and Khurana note,
hard to imagine what leadership is if there isnt a core set of
functions or behaviors that cut across different situations and
persons.46 Certain attributes consistently emerge in research
on effective leadership. Most characteristics cluster in five
categories:
values (integrity, honesty, trust, an ethic of service);
personal skills (self-awareness, self-control,
self-direction);
interpersonal skills (social awareness, empathy, persuasion, conflict management);
vision (forward looking, inspirational);
technical competence (knowledge, preparation,
judgment).47
Although legal education can only do so much to
develop or reinforce these qualities, it should do what it
can, which is far more than it currently attempts.

Learning to Lead
How then can individuals learn to lead? Theories about
learning abound, but on one point there is virtual agreement.
Leaders need the capacity to learn from experienceboth
their own and others. As Mark Twain famously observed, a
cat that sits on a hot stove will not sit on a hot stove again,
but it wont sit on a cold one either. What distinguishes effective leaders is the ability to draw appropriate lessons from the
successes and failures that they experience and observe. In an
apt, if possibly apocryphal exchange, a young lawyer asked a
leader in his field how he came to acquire such a reputation.
People respect my judgment was the response. Why?
the associate wanted to know. Well I guess Ive made the
right decisions. How did you know what decisions were
right?, the associate asked. Experience said the partner.
The associate wouldnt give up. He was probably in training
as a law professor. What was the experience based on? The
answer: Wrong decisions. 48
That is, no doubt, how most lawyers acquire leadership
skills. But other ways are available through legal education.
An effective curriculum should begin from the premise that
individuals vary in how they learn best, and the ideal strategy
is to incorporate multiple approaches such as interdisciplinary research and theory, problems, case studies, role simulations, group interaction, literature, and film.49 Three goals
should be paramount. One is to enhance students capacities
to achieve and exercise leadership, and to understand the
cognitive biases, interpersonal responses, and organizational
dynamics that can sabotage effectiveness. A second objective
is to help students become lifetime learners, and to manage
their own leadership development. A third objective, and
the one most relevant to legal ethics, is to reinforce a sense
of responsibility to use leadership for the public good. Ben
Heineman, former General Counsel of General Electric,
now a lecturer at Harvard, puts it this way: the decisions of
the lawyer as leader should seek to make our national or

global society a better place however difficult that goal is


to define, much less achieve.50 The point is not, of course,
for faculty to use the podium as a pulpit to advance their
own personal conceptions of the public good. It is rather to
encourage students to develop their own views, and to see
leadership not only as a way station to power and status, but
also as an exercise of social responsibility.
With those objectives in view, law schools should both
offer a course focused on leadership and integrate leadership issues throughout the curricula. Not all students will be
comfortable self-selecting for a course labeled leadership,
so it is important to ensure some basic coverage of its core
competencies in other offerings. For example, the leadership failures underpinning the recent financial crisis could
become topics in corporate law and securities regulation.
Lawyers role in the forefront of social change movements
could figure in courses on civil rights, human rights, sex
discrimination, poverty, environmental law, and public interest practice. Clinical courses could provide skills training in
conflict management, team work, and problem solving.
Professional responsibility classes could address a wide
range of leadership issues, such as the importance of diversity, the relationship between supervisory and subordinate
lawyers, the role of moral counseling, the management of
law firms, the special obligations of government attorneys,
and the structure of pro bono programs.51 Leadership can be

A second objective is to help students


become lifetime learners.
an ideal lens for exploring how the good go bad in circumstances where it matters most. A key determinant of ethical
behavior in organizations is the tone at the top.52 Students
who will someday occupy those positions can benefit from
analyzing the personal and institutional dynamics that sabotage moral judgment.
Among those dynamics is the disconnect between the
qualities that often enable individuals to achieve leadership
positions and the qualities that are necessary to perform
effectively once they get there. What makes individuals
willing to accept the pressure, hours, scrutiny, and risks that
accompany leadership? For many lawyers, it is not only
commitment to a cause, an organization, or a client. It is also
power, prestige, and money. Successful leadership requires
subordinating these personal interests to a greater good. The
result is what some psychologists label the leadership paradox. Individuals reach top positions because of their high
needs for personal achievement. Yet to perform effectively
once there, they need to focus on creating the conditions for
achievement by others.53
One mission of leadership education is to help future
lawyers anticipate and avoid the consequences of unchecked

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14

ambition. Case histories of failed law firms and failed causes


can illustrate how the self-centeredness that may propel
individuals to leadership positions may sabotage their subsequent performance.54 The risk is exacerbated by leaders
reluctance to learn about their weaknesses. James Kouzes
and Barry Posner put it bluntly: most leaders dont want
honest feedback, dont ask for honest feedback, and dont
get much of it unless its forced on them.55 Only about 40
percent of law firms offer associates opportunities to evaluate
supervisors, and of those who engage in the process, only
about 5 percent report changes for the better. 56
Of course, lawyer leaders are scarcely unique in their tendency towards self-protection. But the understandable human
aversion to criticism is particularly problematic for leaders,
because of both the power they hold and the understandable
unwillingness of many subordinates to volunteer unwelcome
messages. In Kouzes and Posners survey of some 70,000
individuals, the statement that ranked the lowest in a list of
thirty leadership behaviors was that the leader asks for feedback on how his/her actions affect others performance.57
Yet without such information, lawyers may fail to identify problems in their own performance. Harvard economist
John Kenneth Galbraith once noted that [f]aced with the
alternatives between changing ones mind and proving it
unnecessary, just about everybody gets busy on the proof.58
Defensiveness and denial are particularly apparent when
individuals own self-evaluations are at issue. Leadership
education can explore the cognitive biases that compromise
not only performance but also learning from performance
failures. One such bias is the fundamental attribution
error: a tendency to attribute personal successes to competence and character, and failures to external circumstances.59
A related problem stems from confirmation and assimilation
biases. People tend to seek out evidence that confirms their
preexisting, typically favorable vision of themselves, and
to avoid evidence that contradicts it.60 They also assimilate
evidence in ways that favor their preexisting beliefs and
self-image.61 In one random sample of adult men, 70 percent
rated themselves in the top quarter of the population in
leadership capabilities; 98 percent rated themselves above
average.62
The problem is compounded by the power and perks of
position, which can inflate leaders sense of self-importance
and self-confidence. Being constantly surrounded by those
with less ability or less opportunity to display their ability
can foster what psychologists label the uniqueness bias:
peoples sense that they are special and superior.63 The result
is to reinforce narcissism and a sense of entitlement; leaders
may feel free to disregard legal or ethical rules, and standards
of respect that are applicable to others.64 Yet by thinking
that they are better than those . . . little people, leaders
cut themselves off from [followers] good ideas and good
graces and run the risk of scandal.65 Perceptions of entitlement concerning sex and money have marred the careers of
many prominent lawyer leaders; students can benefit from
exploring these cautionary tales.66

One final pathology worth flagging in leadership education arises from leaders high needs for approval and disdain
for soft skills that may be essential to obtaining it. As
one consultant notes, leaders desire to look good [often]
displaces the intention to be good and to pay attention to
others needs that dont translate into immediate payoffs.67 A
related problem is the assumption that education in interpersonal dynamics and conflict management is a touchy
feely process, unworthy of attention from intellectually
sophisticated individuals. Yet research makes clear that for
many professionals, the soft stuff is the hard stuff.68 Effective leadership requires more than analytic skills, and high
achievers in intellectual domains may not have developed
corresponding emotional intelligence.69
***
Almost two decades ago, John Gardner noted that we have
barely scratched the surface in our feeble efforts toward leadership development.70 For lawyers, that remains true today.
Legal education prides itself on teaching future practitioners
to think like lawyers but does little to teach them to think like
leaders. Many challenges they will face involve questions of
values, so those of us who specialize in professional responsibility have a special opportunity and obligation to address
them. We are, in effect, leaders of those who will become
leaders. We owe it to our students, to our profession, and to
our world to prepare them for that role.
This essay grows out of an address at the International Legal
Ethics Conference at Stanford, University, July 16, 2010.
*

Endnotes
1. William A. Cohen, Drucker on Leadership 167 (2010).
2. Tom Morris, If Aristotle Ran General Motors (1997),
Wess Roberts, Leadership Secrets of Attila the Hun (1989),
Ron Hunter, Jr. and Michael E. Waddell, Toy Box Leadership: Leadership Lessons from the Toys You Loved as a Child
(2009), and Wess Roberts and Bill Ross, Make It So: Leadership Lessons from Star Trek (1995).
3. Neil W. Hamilton, Ethical Leadership in Professional Life, 6 St.
Thomas L. J. 358, 361(2009). For prominent corporate examples, see
Mark Curriden, CEO, Esq. ABA J., May 2010, 31.
4. Herb Rubenstein, Leadership for Lawyers 9 (2000).
5. The Harris Poll Annual Confidence Index Rises 10 Points
(March 5, 2009), available at http://www.harrisinteractive.com/harris_poll/pubs/Harris_Poll_2009_03_05.pdf.
6. See Rakesh Khurana, The Retreat of Professionalism in Business Education, 6 St. Thomas L. Rev. 433 (2009); Edelman, 2009
Edelman Trust Barometer Executive Summary (2009); Pew Global
Attitudes Project (2006).
7. The PEW Research Center for People and the Press, The People
and Their Government: Distrust, Discontent, Anger, and Partisan
Rancor (April 18, 2010), available at http://www.people-press.org/
reports/pdf/606.pdf.
8. Karen Sloan, Diversity, leadership training suffers in downturn,
Natl L. J. May 12, 2009, available at http://www.law.com/jsp/nlj/
PubArticleNLJ.jsp?id=1202430650191&Diversity_leadership_train-

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

15

ing_suffers_in_downturn_&slreturn=1.
9. For corporate expenditures, see Doris Gomez, The Leader as
Learner, 2 International Journal of Leadership Studies 280,
281 (2007). For courses, see Gregory Williams, Teaching Leaders
and Leadership, AALS Presidents Message, April 1999, available at
http://www.aals.org/presidentsmessages/leaders.html. The number has
doubtless grown over the last decade.
10. Williams, supra note 9.
11. Hamilton, supra note 3, at 370.
12. Elliot Cheatham, What the Law Schools Can Do to Raise the
Standards of the Legal Profession, 7 Am. L. Sch. Rev. 716 (1933).
13. George P. Costigan, Jr., The Teaching of Legal Ethics, 4 Am. L.
Sch. Rev. 290, 295 (1917); Sidney Post Simpson, The Function of the
University Law School, 49 Harv. L. Rev. 1068, 1082-83 (1936). For
an overview, see Deborah L. Rhode, Ethics by the Pervasive Method,
42 J. Legal Educ. 31, 33-38 (1992).
14. Charles H. Kinnane, Compulsory Study of Professional Ethics by
Law Students, 16 A.B.A. J. 222 (1930).
15. Thomas Shaffer, Legal Ethics After Babel, 19 Cap. U. L. Rev.
989, 991 (1990).
16. ABA Standards for the Approval of Law Schools, Standard 301
(a)(iii) (1974). Most states require passage of the Multistate Professional Responsibility Exam for Entrance to the Bar. See National
Conference of Bar Examiners, Jurisdictions Using the MPRE in 2010,
http:// www.ncbex.org/multistate-tests/mpre/mpre-faqs/jurs0.
17. See Andrew Boon and Julian Webb, Legal Education and Training in England and Wales: Back to the Future?, 58 J. Legal Educ.
79, 81, 93, 104 (2008).
18. Roger C. Cramton and Susan P. Koniak, Rules, Story, and Commitment in the Teaching of Legal Ethics, 38 Wm. & Mary L. Rev.
145, 145(1997). For an overview of these objections, see Deborah
L. Rhode, Teaching Legal Ethics, 51 St. Louis U. L. J. 1043, 1048
(2007).
19. William M. Sullivan, et al., Educating Lawyers: Preparation for the Practice of Law (2007).
20 Richard Posner, The Deprofessionalization of Legal Teaching and
Scholarship, 91 Mich. L. Rev. 1921, 1924 (1993).
21. Sullivan et al., supra note 19, at 135; Mentkowski and
Associates, Learning that Lasts: Integrating Learning, Development and Performance in College and Beyond 120-121
(2000); Muriel Bebeau, Promoting Ethical Development and Professionalism: Insights from Educational Research in the Professions, 5
St. Thomas L. J. 366, 384-85 (2008); Rhode, Ethics by the Pervasive
Method, supra note 13, at 46; M Neil Browne, Carrie L. Williamson,
& Linda L. Barkacs, The Purported Rigidity of an Attorneys Personality: Can Legal Ethics be Acquired?, 30 J. Legal Prof. 55 (2006).
22. Nitin Nohria and Rakesh Khurana, Advancing Leadership Theory
and Practice, in Handbook of Leadership Theory and Practice
3 (Nitin Nohria and Rakesh Khurana eds. 2010). See also Hamilton,
supra note 3, at 370.
23. Peter E. Drucker, The Practice of Management 194
(1954).
24. For contemporary research, see, e.g., Roger Gill, The Theory
and Practice of Leadership 271 (2006). For Druckers revised
views, see Peter Drucker, Foreword, The Leader of the Future xi
(1996) (noting that Leadership must be learned and can be learned).

25. For twins studies see Richard D. Arvey, Maria Rotundo, Wendy
Johnson, Zhen Zhang, and Matt McGue, The determinants of leadership role occupancy: Genetic and personality factors, 17 Leadership
Quarterly 1 (2006); Bruce Avolio, Pursuing Authentic Leadership
Development, in Handbook of Leadership Theory and Practice,
supra note 22 at 739, 752; Warren G. Bennis & Bert Nanus, Leadership: Strategies for Taking Charge 207 (1997).
26. Keith Grint, Leadership: Classical, Contemporary, and
Critical Approaches 2 (1997).
27. Alan Johnson, Self-Emancipation and Leadership: The Case of
Martin Luther King, in Leadership in Social Movements 96-101
(Colin Barker, Alan Johnson, & Michael Lavalette, eds. 2001).
28. Cohen, supra note 1, at 204.
29. Jacob Heilbruner, Interim Report, N.Y. Times Book Review, May
30, 2010, 12.
30. Gina Passarella, Leadership Programs Born from Lack of Born
Leaders, The Legal Intelligencer , November 5, 2007 (quoting Jeffrey Lutsky, managing partner of Stradley Ronon Stevens and Young).
31. Laurie Bassi and Daniel McMurrer, Leadership and Large Firm
Success: A Statistical Analysis, available at http://www.mcbassi.com/
resources/documents/WhitePaper-LeadershipAndLawFirmSuccess.pdf.
32. Deborah L. Rhode, Public Interest Law: The Movement at Midlife,
60 Stan. L. Rev. 2027, 2046 (2008) (quoting Eric Cohen, Legal Director, Immigrant Legal Resource Center).
33. Nohria & Khurana, supra note 22, at 5. Signs of neglect include
reliance on adjunct faculty to teach most leadership courses, and lack
of doctoral programs and publications in the most prominent journals.
Id. See also Jeffrey Pfeffer, Leadership Development in Business
Schools: An Agenda for Change, in Jordi Canals, The Future of
Leadership Development: The Role of Business Schools (forthcoming).
34. Pfeffer, Leadership Development; Kelley Holland, Is it Time to
Retrain B-Schools?, N.Y. Times, March 15, 2009, Business, 2.
35. Aspen Institute, Where Will They Lead? 2008 MBA Student Attitudes About Business and Society (New York: Aspen Institute, 2008).
36. Robert Gordon, Are Lawyers Friends of Democracy?
(forthcoming 2010).
37. Bass and Stogdills Handbook of Leadership: Theory,
Research, and Managerial Applications (New York: Free Press,
3d ed. 1990); Gareth Edwards, In Search of the Holy Grail: Leadership
in Management (Working Paper LT-GE-00-15 Ross-on-Wye, United
Kingdom, Leadership Trust Foundation 2000).
38. John W. Gardner, On Leadership 3 (New York: Free Press,
1990).
39. Deborah L. Rhode, Where is the Leadership in Moral Leadership,
in Moral Leadership: The Theory and Practice of Power, Judgment, and Policy 4 (Deborah L. Rhode, ed., 2006).
40. Montgomery Van Wart, Dynamics of Leadership in Public
Service: Theory and Practice 113 (2005).
41. Thomas Carlyle, On Heroes, Hero Worship, and the Heroic
in History (1902); Max Weber, The Sociology of Charismatic Authority, in From Max Weber: Essays in Sociology 245-46 (trans. and ed.
H.H. Gerth and C. Wright Mills, 2009).
42. Joseph S. Nye, The Powers to Lead, 121-22 (2009).
43. Jim Collins, Level 5 Leadership: The Triumph of Humility and
Fierce Resolve, Harvard Bus. Rev., Jan. 2001, 73; Roger Gill,

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

16

Theory and Practice of Leadership, 253 (2006).


44. Micahel Hilzik, Peter Druckers Revolutionary Teachings; Decades Old but Still Fresh, Los Angeles Times, Dec. 31, 2009.
45. For early development of the theory, see Fred E. Fiedler, A
Theory of Leadership Effectiveness (1967); Fred E. Fiedler,
Leadership: A New Model, in Leadership 230-241 (Cecil Austin
Gibb, ed., 1969). For discussion of its contemporary applications,
see Robert Goffee and Gareth Jones, Why Should Anyone Be Led by
You?, Harvard Business Review, September-October 2000, 63, 64;
Jay Lorsch, A Contingency Theory of Leadership, in Handbook of
Leadership Theory and Practice, supra note 22, at 411-24.
46. Nohria and Khurana, supra note 22, at 17.
47. For values, see Warren Bennis, On Becoming a Leader
32-33 (2d ed. 1994) (citing integrity, trust); Van Wart, supra note 40,
at 16, 92-119 (2005) (citing integrity and an ethic of public service);
James M. Kouzes and Barry Posner, The Leadership Challenge 21(1995) (citing honesty). For personal skills, see Daniel
Goleman, Richard Boyatzis, and Annie McKee, Primal Leadership: Realizing the Power of Emotional Intelligence 25356 (2002) (citing self awareness, self management); Van Wart, supra
note 40, at 16 (citing self-direction). For interpersonal skills, see Goleman, Boyatzis, and McKee, supra at 253-56 (citing social awareness,
empathy, persuasion, conflict management); For vision, see Bennis,
supra, at 33 (citing vision); Kouzes and Posner, supra, at 21 (citing
forward looking, inspiring). For competence, see id; Lorsch, supra
note 45, at 417; Noel M. Tichy & Warren G. Bennis, Judgment:
How Winning Leaders Make Great Calls (2007) (describing
importance of judgment).
48. For a variation on this story, see Noel M. Tichy & Warren G.
Bennis, Judgment: How Winning Leaders Make Great Calls
10 (2002).
49. Nye, supra note 42, at 24; Jay A. Conger, Leadership Development Initiatives, in Handbook of Leadership Theory and
Practice, supra note 22, at 712, 716; Roger Gill, Theory and
Practice of Leadership 275 (2006); Peter E. Drucker, Managing
Oneself, Harvard Bus. Rev., March-April 1999, 68-69; Doug Lennick & Fred Kiehl, Moral Intelligence: Enhancing Business
Performance and Leadership Success 239 (2008).
50. Ben W. Heineman, Jr., Law and Leadership, 116 Yale L.J.
Pocket Part (2007).
51. For examples, see Deborah L. Rhode and Amanda K.
Packel, Leadership: Law Policy, and Management (forthcoming); Rhode, supra note 39; Deborah L. Rhode, Rethinking the Public
in Lawyers Public Service: Pro Bono, Strategic Philanthropy, and the
Bottom Line, 77 Fordham L. Rev. 1435 (2009).
52. Rhode, supra note 39, at 39; Linda Kelber Trevino, et al, Managing Ethics and Legal Compliance: What Works and What Hurts, 441
California Management Review 131, 142 (1999); Chris Moon
and Clive Bonny, Attitudes and Approaches, in Business Ethics:
Facing Up to the Issues (Chris Moon and Clive Bonny eds. 2001);
Heesun Wee, Corporate Ethics: Right Makes Might, Business Week
Online, April 11, 2002.
53. Jennifer A. Chatman and Jessica A. Kennedy, Psychological
Perspectives on Leadership, in Handbook of Leadership Theory
and Practice, supra note 22, at 169, 174.
54. For examples, see Rhode and Packel, supra note 51; Hil-

debrandt, The Anatomy of Law Firm Failures, November 19, 2008,


available at http://www.hildebrandt.com/The-Anatomy-of-Law-FirmFailures; Jonathan Glater, West Coast Law Firm Closing After DotCom Collapse, N.Y. Times, Jan. 31, 2003, at C1; Susan Kostal, San
Francisco online, The Brobeck Mutiny (2003), available at http://www.
sanfranmag.com/story/brobeck-mutiny.
55. James M. Kouzes and Barry Z. Posner, A Leaders Legacy
28 (2006).
56. National Association for Law Placement Foundation, How
Associate Evaluations Measure Up, A National Study of Associate
Performance Assessments 74 (2006).
57. Kouzes and Posner, supra note 55, at 28.
58. Robert Hargrove, Masterful Coaching 302 (2008) (quoting
Galbraith).
59. See Lee Ross, The Intuitive Psychologist and his Shortcomings;
Distortions in the Attribution Process, 10 Advances in Experimental
Social Psychology 173 (Leonard Berkowitz, ed. 1977); Paul Brest
and Linda Krieger, Problem Solving, Decision Making, and
Professional Judgment 332, 620- 21 (2010).
60. Brest and Krieger, supra note 59, at 618-19, 636; Raymond
S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many
Guises, 2 Rev. Gen. Psychol. 175 (1998); Jean R. Sternlight &
Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists:
Insights for Interviewing and Counseling Clients, 23 Ohio St. J. on
Disp. Resolution 437, 454 (2008).
61. Brest and Kreiger, supra note 59, at 282-83; Jane Risen & Thomas
Gilovich, Informal Logical Fallacies, in Critical Thinking in Psychology 110, 112-13 (Robert J. Sternberg et al eds. 2007); Charles G.
Lord, Lee Ross, and Mark R. Lepper, Biased Assimilation and Attitude
Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 Journal of. Pers. & Soc. Psychol. 2098 (1979).
62. David G. Myers, The Inflated Self: How Do I Love Me? Let Me
Count the Ways, Psychology Today, May, 1980, 16.
63. Terry L. Price, Leadership Ethics: An Introduction 110-12
(2008); George R. Goethals, David W. Messick and Scott T. Allison,
The Uniqueness Bias: Studies of Constructive Social Comparison, in
Social Comparison: Contemporary Theory and Research 149,
153-55 (Jerry M. Suls and Thomas Ashby Wills, eds., 1991).
64. Manfred Kets de Vries and Elisabet Engellau, A Clinical Approach to the Dynamics of Leadership and Executive Transformation,
in Handbook of Leadership Theory and Practice, supra note
note 22, at 183, 195. See also Roderick Kramer, The Harder They Fall,
Harvard Bus. Rev., October 2003, at 61.
65. James M. Kouzes and Barry Posner, A Leaders Legacy 128
(2006).
66. Among the prominent recent examples are John Edwards, Eliot
Spitzer, Bill Clinton, Gary Hart, Mark Dreier, and Kwame Kilpatrick.
67. Hargrove, supra note 58, at 124. See also Chris Argyris, Teaching Smart People How to Learn, 69 Harvard Bus. Rev. 99 (1991).
68. Richard J. Leider, The Ultimate Leadership Task: Self-Leadership,
in The Leader of the Future 189 (Frances Hesselbein, Marshall
Goldsmith, and Richard Beckhard, eds., 1996).
69. For an overview, see Daniel Goleman, Emotional Intelligence (1995); Goleman, Boyatzis, and McKee, supra note 47;
Argyris, supra note 67.
70. John Gardner, On Leadership xv (1990).

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or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

17

Courtroom Technology and Legal Ethics:


Considerations for the ABA Commission on Ethics 20/20
Michelle L. Quigley

he use of technology in litigation is not a new phenomenon. For more than thirty years, lawyers have
used equipment such as overhead projectors, television sets, and VCRs in the courtroom to present their cases.1
Todays courtroom technology, however, provides lawyers
with much more sophisticated and versatile options.2
Because of the many benefits of using courtroom technology to visually present ones case, from enhancing the jurys
comprehension and retention of the information presented to
reducing the overall length of trials, its use will only continue
to rise.3 Indeed, the adversary process itself will likely lead
to this result as lawyers realize that an unwillingness to take
advantage of courtroom technology, especially when ones
opponent does, is an unacceptable risk.4 Two important questions necessarily follow. First, what ethical considerations are
implicated as technology-augmented litigation becomes the
norm? And second, do the current Model Rules of Professional Conduct (Model Rules) adequately address those
ethical concerns?

The ABA Commission on Ethics 20/20


In 2009, the ABA created the Commission on Ethics 20/20
(the Commission) to assess the adequacy of the current
Model Rules in light of modern technological advances
and the increased globalization of the practice of law.5 The
Commissions work is expected to take three years, with
the first year dedicated to research, and the second and third
years dedicated to developing and vetting proposed policies
and principles and presenting them to the ABAs House of
Delegates for approval.6
The Commission has identified three focus areas:
(1) issues that arise because U.S. lawyers are regulated
by states but work increasingly across state and international borders; (2) issues that arise in light of current
and future advances in technology that enhance virtual
cross-border access; and (3) particular ethical issues
raised by changing technology.7

Though the effects of technological advances on the


ethical duties of lawyers is clearly one of the Commissions
primary focuses, courtroom technology is not specifically set
out as an area of concern in the Commissions Preliminary
Issues Outline.8 The most relevant topic to courtroom technology in the Preliminary Issues Outline is Competence:
Michelle L. Quigley is a law clerk for the Honorable Gordon J. Quist of the United States
District Court for the Western District of Michigan.

Does the rapid pace of technological evolution raise issues


relating to lawyer competence.9 Because technology-augmented litigation is steadily becoming the norm for modern
courtroom practice, the Commission should consider, as
part of its technology discussion, whether the Model Rules
adequately cover the use of courtroom technology.

Courtroom Technology under the Model Rules


But for the mention of electronic communications in connection with lawyer advertising and solicitation of professional
employment from prospective clients, the Model Rules do
not specifically address technology or how technological advances affect a lawyers ethical duties. The lack of an explicit
reference notwithstanding, however, technological advances
can affect a lawyers duties even under the current Model
Rules. Specifically, when it comes to technology-related
issues, the duties of confidentiality, competence, and diligence
are the duties most often implicated.
For example, when sending an electronic document to
third-parties, lawyers may need to consider whether they are
also transmitting confidential client information as metadata.
Metadata, which accompanies electronic documents, can
reveal information regarding the authorship of a document and
changes made during drafting including, among other things,
deletions.10 Some state bar opinions have held that, in order
to avoid violating the duties of competence and confidentiality, attorneys must take reasonable steps to safeguard against
revealing such information.11 Some states have also held that
lawyers may not ethically attempt to mine for such data
when receiving electronic documents.12 Similarly, the duties of
confidentiality, competence, and diligence have been implicated
in other technology-related activities such as e-discovery,13
switching to a paperless filing system,14 transmitting sensitive
information via email,15 and conducting online research.16
When it comes to using courtroom technology to visually
present ones case, maintaining confidentiality is generally not
an issue, yet several other Model Rules may be implicated. Of
particular relevance are Model Rule 1.1, requiring competence,
Model Rule 1.3, requiring diligence, and Model Rule 1.5,
requiring reasonable fees. Although all three rules could be
interpreted so as to cover courtroom technology, an examination of each reveals that many questions are left unanswered.

1. The Duty of Competence


According to Model Rule 1.1, competence requires the legal
knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.17 The comments indicate
that in order to maintain the knowledge and skill required for
competent representation, a lawyer should keep abreast of

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or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
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18

changes in the law and its practice.18 Indeed, even the ABAs
own website indicates that [c]ompetence in using a technology can be a requirement of practicing law.19 Thus, one could
argue that, as using courtroom technology to visually display
evidence becomes the standard, the duty of competence will
require lawyers to adjust accordingly. That is, at a minimum,
lawyers should have a general understanding of how to use
courtroom technology in presenting their cases.20
The comments to Model Rule 1.1 also indicate that the
requisite thoroughness and preparation are determined in
part by what is at stake.21 That is, major or complex litigation
may require more preparation and treatment to satisfy the
competency requirement. Thus, a complex patent or similar
type case that requires the jury to understand a detailed
scientific process may require more preparation and treatment
than an uncomplicated contract dispute. If a simple graphic or
chart explaining the scientific process involved would greatly
improve the jurys ability to understand a pivotal issue in the
case, would the duty of competent representation require the
lawyer to use one?
Assuming that the duty of competence does entail an
obligation to be at least minimally competent in the use of
courtroom technology, further questions still arise. One example would be whether and to what extent the lawyer who
does use courtroom technology to present her case must also
be prepared in the event that technology fails.22 If an evidence
camera stops working in the middle of trial, for example,
because the light bulb failed, must the adequately prepared
attorney have a spare light bulb on hand, acetate transparancies ready to place on an overhead projector instead, or paper
copies of the exhibits available to pass to the jurors?23 If
the courtroom itself was equipped with the camera, can the
attorney depend on the court to also supply a spare bulb?24 If
the attorney intends to use a PowerPoint presentation, would
simply bringing an extra copy of the presentation on a CD
or flash drive be sufficient? Or should the attorney also bring
a copy of the Microsoft software program that would be
necessary to view it on another computer? Should an attorney
using her own laptop for presentation purposes be prepared
with a second laptop in the event the first laptop crashes? In
other words, even if one believes that the duty of competence
requires lawyers to be capable of using courtroom technology, which is uncertain under the current Model Rules, the
question of whether and to what extent the thoroughness
and preparation element of that duty requires lawyers to be
prepared for technology failures is also open for discussion.

2. The Duty of Reasonable Diligence


Whereas the Model Code of Professional Responsibility
explicitly included a duty of zealous representation, the current Model Rules have reshaped that duty into a combination
of the duties of competence and diligent representation.25
Because of fears that the term zealous could slip into
overzealous, no Model Rule contains an outright duty of
zeal.26 Even so, the comments do refer to an obligation of
zealous representation: (1) A lawyer must also act with . . .

zeal in advocacy upon the clients behalf27; (2) [W]hen an


opposing party is well represented, a lawyer can be a zealous
advocate on behalf of a client and at the same time assume
that justice is being done28; and (3) These principles include the lawyers obligation zealously to protect and pursue
a clients legitimate interests, within the bounds of the law,
while maintaining a professional, courteous and civil attitude
toward all persons involved in the legal system.29
Considering all three of these comments and the many
benefits to using courtroom technology, one might assume
that diligent representation requires attorneys to visually present their cases using courtroom technology, especially where
opposing counsel is doing so. To be sure, when surveyed,
many attorneys indicate that if opposing counsel is using
litigation support software, they would be inclined to do so as

Lawyers should have a general


understanding of how to use
courtroom technology in
presenting their cases.
well.30 One defense attorney, after unsuccessfully objecting
to the prosecutions use of a computer slide show in closing
arguments, confessed to reporters that his own arguments had
appeared slipshod in comparison.31 Indeed, many computer-savvy jurors may even expect attorneys to use technology
in presenting their cases. The comments to Model Rule 1.3s
duty of reasonable diligence, however, also provide that
lawyers are not bound . . . to press for every advantage that
might be realized for a client.32 This statement alone makes
it difficult to argue that the current diligence requirement
includes a duty to use courtroom technology to present ones
case, even in the situation where ones opponent is doing so.

3. The Duty to Keep Fees Reasonable


The duties of competence and diligence must be balanced
against the countervailing duty to keep fees reasonable,
which is set out in Model Rule 1.5.33 The rule itself requires
that lawyers fees be reasonable and sets out a non-exclusive
list of factors to consider. Thus, there is substantial room for
discretion in determining a proper fee.34
When it comes to courtroom technology, it is a question
of balancing the cost and effectiveness of a given evidence
display technology or particular type of computer-generated
exhibit (CGE). For example, because moving CGEs, such
as animations and simulations, can cost upwards of $5,000
to produce, attorneys must have an adequate knowledge of
when and why one would want to use such evidence.35 Some
potential guidelines that have been suggested by commentators include the following: (1) whether your case involves

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or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
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19

a risk of exposure in excess of $500,000; (2) whether your


case creates a story that should be presented clearly; (3)
whether your case hinges in causation; (4) whether your case
involves complex expert testimony; and (5) whether your opponent is using an animation or simulation, which you should
attack with one of your own.36 More simple CGEs, on the
other hand, such as static or enhanced images, can be used
much more frequently and cost-effectively, especially where
the courtroom itself is equipped with the evidence display
technology. Even if the courtroom itself is not equipped, most
of the basic evidence display technologies, such as evidence
cameras and digital projectors, can be purchased or even
rented at a relatively low cost.37

Considerations for the ABA Commission on


Ethics 20/20
There are numerous benefits to using courtroom technology
to visually present ones case: increased juror comprehension
and retention of the information presented, increased persuasive power, increased efficiency, the appearance of competence and preparedness, and the ability to control the room.
As such, using courtroom technology will soon be, if it is not
already, standard practice in modern litigation. Therefore, as

The real issue here lies in the duty of


competence and its effect on the use
of courtroom technology.
part of its technology discussions, the Commission should
consider the use of courtroom technology specifically and
whether the Model Rules themselves, or at least their comments, need to be amended to better address it.
Of the three rules discussed that might relate to courtroom
technology, the fee issue is probably the most sufficiently
addressed under the current Model Rules. This is so simply
because the rule itself does not impose a bright line fee
structure, but rather leaves room for discretion. Thus, whether
the effectiveness of using a particular type of courtroom
technology is valid justification for the potential increase in
the attorneys fee is also subject to discretion. The duties of
competent and diligent representation, on the other hand,
could be read either way. That is, perhaps a lawyers duties
of competent and diligent representation require that she be
familiar with how to use courtroom technology and when and
why one should do so, but perhaps not. Because of the clear
message of the comments to Model Rule 1.3 on diligence
that lawyers do not have an ethical obligation to press for
every advantage that might be realized for a client38 it is
unlikely that courtroom technology can be addressed under
that rule, short of deleting that comment altogether, which
would have a broader unintended effect. Thus, the real issue

here lies in the duty of competence and its effect on the use
of courtroom technology.
Specifically, as part of its technology discussion, the
Commission should consider, first, whether lawyers have
an ethical obligation to be minimally competent in the use
of courtroom technology when advocating for their clients, which this author would suggest they do, and second,
whether the current Model Rule on competence adequately
expresses that duty, which this author would suggest it does
not. It is not necessary, however, to drastically reword Model
Rule 1.1 to make the duty clear. Indeed, an additional comment to the rule would be more than sufficient. A possible
starting point for discussion is the following:
Maintaining the requisite knowledge and skill necessary for competent representation includes a duty to
keep abreast of technological advances that significantly affect the practice of law. For example, in certain
circumstances, lawyers may have an ethical obligation
to use courtroom technology in advocating for their
clients and to be competent in the use of technology
when doing so.

The structure of a comment like this allows not only for


courtroom technology to be addressed, but other areas in
which technology has affected the practice of law as well.
That is, other for example sentences could follow, further
clarifying how and in what circumstances technology shapes
the duty of competence.
Finally, regardless of whether the Commission modifies the
Model Rules to address courtroom technology, trial lawyers
must still consider this issue in light of the rules as they are
today. That is, trial lawyers need to apply their current understanding of the duties of competence, diligence, and reasonable fees when deciding whether and how to take advantage of
courtroom technology. Only those lawyers who have done so
will be adequately prepared to defend themselves in the event
their compliance with these obligations, as they relate to the
use of courtroom technology, is ever challenged.39

Conclusion
As more trial attorneys become aware of the many benefits of
using courtroom technology in presenting their cases, technology-augmented litigation will become standard practice.
As such, the Model Rules should address the ethical duties
of attorneys with regard to the use of courtroom technology,
even if only to clarify that a minimal competence in the use
of courtroom technology is, in fact, an ethical obligation for
all trial attorneys. Courtroom technology should, therefore,
be considered by the Commission as part of its discussions
on modern technology and the practice of law.

Endnotes
1. See Deanne C. Siemer et al., Natl Assoc. for Trial
Advocacy, Effective Use of Courtroom Technology: A Lawyers Guide to Pretrial and Trial 20-21 (2002) [hereinafter

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

20

Lawyers Guide] (describing the legacy equipment (i.e. older


equipment) available in courtrooms).
2. Available technologies include the following: (1) evidence cameras; (2) laptop computers equipped with presentation software, such
as Trial Director, Sanction, Trial Pro, or Microsofts PowerPoint; (3)
electronic whiteboards; (4) digital monitors, which vary in size and can
be located anywhere in the courtroom including the bench, behind the
witness stand, and in the jury box; (5) digital projectors and projection
screens; (6) annotation equipment; (7) integrated lecterns; and (8) kill
switch and control systems. See Elizabeth C. Wiggins, The Courtroom
of the Future is Here: Introduction to Emerging Technologies in the Legal System, 28 Law & Poly 182 (2006) and Lawyers Guide, supra
note 1, at 6-20.
3. See generally Joanna Gallant et al., The Science of Courtroom Litigation: Jury Research & Analytical Graphics (2008);
Fred Galves, Where the Not So Wild Things Are: Computers in the
Courtroom, the Federal Rules of Evidence, and the Need for Institutional
Reform and More Judicial Acceptance, 13 Harv. J.L. & Tech. 161
(2000); Frederic I. Lederer, The Road to the Virtual Courtroom? A Consideration of Todaysand TomorrowsHigh-Technology Courtrooms,
50 S.C. L. Rev. 799 (1999).
4. Lederer, supra note 3, at 830.
5. ABA Commn on Ethics 20/20, Preliminary Issues Outline 1
(2009) [hereinafter Preliminary Issues Outline], available at http://
www.abanet.org/ethics2020/outline.pdf.
6. Message from Commission on Ethics 20/20 Co-Chairs Jamie S.
Gorelick and Michael Traynor, http://www.abanet.org/ethics2020/chairs.
html (last visited Mar. 10, 2010).
7. Preliminary Issues Outline, supra note 5, at 2.
8. See id. at 3-9.
9. Id. at 8.
10. Profl Ethics of the Fl. Bar, Ethics Op. 06-2 (2006), available at http://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/
ETHICS,+OPINION+06-2 (last visited Mar. 10, 2010).
11. See, e.g., id.; N.Y. State Bar Assn, Ethics Op. 782 (2004) (holding
that a lawyer must take reasonable care to ensure that confidential information is not disclosed when sending electronic documents and that [r]easonable care may, in some circumstances, call for the lawyer to stay abreast
of technological advances and the potential risks of transmission in order to
make an appropriate decision with respect to the mode of transmission).
12. See, e.g., N.Y. State Bar Assn, Ethics Op. 749 (2001); Profl Ethics
of the Fl. Bar, Ethics Op. 06-2 (2006). But see ABA Comm. on Ethics and Profl Responsibility, Formal Op. 06-442 (2006) (finding that
the Model Rules generally permit lawyers to review and use metadata
received from opposing counsel or an adverse party).
13. See generally Lauren Katz, A Balancing Act: Ethical Dilemmas
in Retaining E-Discovery Consultants, 22 Geo. J. Legal Ethics 929
(2009); Ralph C. Losey, Lawyers Behaving Badly: Understanding Unprofessional Conduct in E-Discovery, 60 Mercer L. Rev 983 (2009).
14. See, e.g., VSB Comm. on Legal Ethics, Ethics Op. 1818 (2005)
([W]hen making decisions as to what to keep in the file and in what
form, while an attorney may consider storage expediency, those decisions
must be made such that the attorneys duties of competence, diligence,
and communication are not compromised.); N.J. Sup. Ct. Advisory
Comm. on Profl Ethics, Ethics Op. 701 (2006).
15. ABA Comm. on Ethics and Profl Responsibility, Formal Op. 99-

413 (1999) (concluding that a lawyer generally may transmit confidential


client information via email without violating Model Rule 1.6).
16. Paul W. Vapnek et al., Cal. Prac. Guide: Profl Resp. 6:9394 (Performing Services diligently may require certain resources and
capabilities beyond legal knowledge and skill. . . . Lawyers cannot ignore
technological advancements such as computerized legal research and
computer-accessible libraries.).
17. Model Rules of Profl Conduct R. 1.1 (2010).
18. Id. at R. 1.1 cmt. 6 (emphasis added).
19. ABA, Legal Ethics and Technology: Technological Competence, http://www.abanet.org/tech/ltrc/research/ethics/competence.html.
20. Frederic I. Lederer, High-Tech Trial Lawyers and the Court: Responsibilities, Problems, and Opportunities, 52 Fed. Law. 41, 44 (2005)
(Lawyers have a general professional ethical duty to provide competent
representation. If that duty were to extend to competence in the use of
courtroom technologyand this author would urge that it doescounsel
would have an affirmative duty to learn how to be at least an adequately
competent high-tech trial lawyer when attempting to use that technology.).
21. Model Rules of Profl Conduct R. 1.1 cmt. 5.
22. See Lawyers Guide, supra note 1, at 164 (Lawyers should focus
on what will happen if the equipment fails. Equipment failures are not
usually a problem once the equipment is running. . . . Almost all failures
occur on the first day the equipment is used, generally because someone
failed to connect cabling properly.).
23. See id. at 59, 164 (describing both transparencies and paper copies
as possible backup arrangements for evidence camera failures and suggesting that the prudent lawyer will have a spare bulb within reach if
she supplied the evidence camera herself).
24. See id. at 59.
25. Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics:
The Lawyers Deskbook on Profl Responsibility 19-20 (2010).
26. Id.
27. Model Rules of Profl Conduct R. 1.3 cmt. 1 (2010).
28. Model Rules of Profl Conduct pmbl. cmt. 8 (2010).
29. Model Rules of Profl Conduct pmbl. cmt. 9 (2010).
30. Lynn A. Epstein, The Technology Challenge: Lawyers have Finally
Entered the Race But Will Ethical Hurdles Slow the Pace?, 28 Nova L.
Rev. 721, 741 (2003).
31. Lederer, supra note 4, at 833.
32. Model Rules of Profl Conduct R. 1.3 cmt. 1 (2010).
33. Model Rules of Profl Conduct R. 1.5 (2010).
34. Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the
Practice of Law 487 (2d ed. 2008).
35. Laura Wilkinson Smalley, Annotation, Establishing the Foundation
to Admit Computer-Generated Evidence as Demonstrative or Substantive
Evidence, 57 Am. Jur. Proof of Facts 3d 455 (2000).
36. Id.
37. Lawyers Guide, supra note 1, at 53.
38. Model Rules of Profl Conduct R. 1.3 cmt. 1 (2010).
39. Cf. Dale M. Cendali et al., Practising Law Inst., Potential
Ethical Pitfall in Electronic Discovery 109 (2007) (explaining that lawyers should apply the well-established ethical rules to the
area of e-discovery, for which there isnt explicit ethical guidance, as
parties who are prepared and take reasonable steps to comply with their
[ethical] obligations will be in a better position to defend their efforts
with regard to e-data than parties who fail to do so).

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

21

Should States Ban Contingency Fee Agreements between


Attorneys General and Private Attorneys?
Carson R. Griffis

ontingency fee arrangements have long been debated


by the legal profession.1 On the one hand, they enable
many clients to obtain representation they would otherwise be unable to afford.2 On the other hand, contingency
fees present the possibility of conflicts of interest.3 One such
conflict, and the topic of this article, is the one that may arise
when attorneys general enter into contingency fee agreements with private firms that help conduct state litigation.4 In
the wake of the tobacco litigation of the 1990s, concern over
state attorneys general contracting with private firms sparked
a reform movement to curb such arrangements.5 The 2010
Deepwater Horizon disaster in the Gulf of Mexico, with its
potential for vast recoveries for plaintiffs,6 raises the question of whether reform efforts will continue to succeed as
attorneys general of Gulf Coast states face public pressure to
sue BP and Transocean.7

The History of Contingency Fee Agreements


between Private Firms and Attorneys General
Contingency fee agreements between state attorneys general
and private attorneys were thrust into the limelight in the
1990s when the total settlement in the 1990s tobacco litigation netted private attorneys $14 billion in fees nationwide.8
These huge fees prompted reform efforts aimed at requiring
public disclosure of the agreements.9
In 1998, the American Legislative Exchange Council
(ALEC), a nonpartisan organization of state legislators,
approved model legislation entitled the Private Attorney Retention Sunshine Act, which includes requirements for open
and competitive bidding for state contracts, public hearings
for contracts larger than $1 million, capped hourly wages
of $1000, and documentation of attorneys hours, expenses,
and hourly rates.10 Currently, Connecticut, Colorado, Florida,
Kansas, Minnesota, North Dakota, Texas, and Virginia have
adopted variations of the Private Attorney Retention Sunshine Act.11 Similar bills await passage in Alabama, Iowa,
Mississippi, and South Carolina.12
States that have adopted some form of legislation vary
in the degree to which they adhere to ALECs guidelines.
Most of these states require some kind of reporting by either
the attorney general or the private attorney to the court, the
public, or the legislature. For example, Kansas requires that
any contingency fees to be paid by the state be approved
by the judge in the case, who determines whether they are
reasonable, using as guidelines the same eight factors found
in Rule 1.5(a) of the Kansas Rules of Professional Conduct
(and the Model Rules of Professional Conduct) in regard to
Carson R. Griffis is a Morrissey Scholar, The John Marshall Law School (Chicago).

the reasonableness of any fees.13 Colorado requires that the


private attorney provide reports of his or her hours, services,
and court costs to the governmental entity with which he
or she contracted, and caps the hourly rate at $1000.14 As
to public disclosure, North Dakota explicitly exempts the
reports prepared by the attorney general from its public
disclosure statutes.15 By contrast, Virginia subjects all
contingency fee arrangements reasonably expected to yield
more than $100,000 to an open and competitive negotiation
process.16
Floridas recent law is unique in that it both caps the total
contingency fees and requires that the contract be posted
on the website of the state entity within five days of the
execution of the contract.17 The Florida statute requires a
demanding analysis and justification by the attorney general.
In deciding to hire a private firm or attorney, the Florida
Attorney General is required to prepare a written determination for the public, specifically addressing three findings:
1) whether there are sufficient legal and financial resources
available to handle the matter; 2) the time and nature of work
involved, as well as the complexity of the issues; and 3) the
geographic area where the services will be provided.18
While state reform has been effectuated through legislation, the federal government has acted through the executive
branch. In 2007, President Bush issued Executive Order
13,433, which prohibits executive agencies from entering
into contingency fee agreements for legal or expert witness
services, unless such an agreement is required by law.19 The
policy underlying the order is to ensure the integrity and
effective supervision of the legal . . . services provided to or
on behalf of the United States.20
In addition to supporting legislative restrictions on
contingency fee agreements between state attorneys general
and private attorneys, reformers have focused on claims
that these agreements violate both separation of powers and
neutrality.21 These contingency fee agreements allegedly
violate separation of powers because they are not subjected
to the legislative appropriations process typically required for
the distribution of state funds.22 Thus, in Meredith v. Ieyoub,
the Supreme Court of Louisiana held that the state attorney generals use of contingent fees as a means to enforce
environmental laws violated separation of powers because
the state legislature had not expressly delegated the attorney
general the authority to appropriate state funds.23 Lousiana is
the sole example of a successful separation of powers challenge to such contingency fee arrangements.24
Contingency fee agreements between state attorneys
general and private counsel also allegedly violate the duty
of neutrality because attorneys general, who represent the

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or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

22

interest of the general public, may compromise their neutrality by possessing a financial stake in the outcome of cases
where they are only paid if they win.25 For example, the
Supreme Court of California held a contingency fee arrangement for a public nuisance abatement action invalid as a
violation of the neutrality standards by which the state attorney general must abide.26 The court acknowledged, however,
that only certain types of civil litigation by states demand
heightened neutrality.27 Indeed, the Supreme Court of California recently held that neutrality is maintained in a public
nuisance abatement action if the attorney general controls
the litigation and the action does not pose a threat to fundamental constitutional interests or to continued operation of
an ongoing business.28 The court specified that contingency
fee agreements between public entities and private outside
counsel are permissible so long as three requirements are
met: (1) that the public-entity attorneys will retain complete
control over the course and conduct of the case; (2) that
government attorneys retain a veto power over any decisions
made by outside counsel; and (3) that a government attorney
with supervisory authority be personally involved in overseeing the litigation.29 Thus, a contingency fee contract only
violates the neutrality principle when a public entity cedes
complete control of a public nuisance abatement action that
implicates constitutional rights or the ability of a business to
continue its operations.

Neutrality, Cronyism and Accountability: Why


Attorneys General Should Not Employ Private
Counsel
Reformers posit several arguments regarding the hazards
contingency fees pose. Those with concerns about neutrality
point out that attorneys general do not represent a client
in the traditional sense; rather, they represent the People.30
Therefore, they are mandated to act in the public interest, including the interest of defendants.31 By linking an attorneys
financial recovery to the success of litigation, such contracts
allegedly provide an incentive for attorneys to seek maximum damages rather than justice for all citizens.32 Reformers
also assert that contingency fee agreements create disincentives to seek equitable relief, which may be more appropriate
than damages.33 Some even note that the litigation for which
private attorneys are often retained involves defendants from
controversial industries, for example, the tobacco industry.34
Stacking the moral authority of the state against such defendants jeopardizes their chance for a fair trial.35
Reformers also note that contingent fee arrangements lead
to political cronyism.36 For example, a Houston firm that
contributed $75,000 to the Mississippi Attorney Generals
campaign was hired to represent the state against Eli Lilly
in a suit involving the drug Zyprexa.37 When the suit settled
for $18.5 million, the firm netted $2.78 million in fees paid
directly by Eli Lilly.38 As with all fee arrangements between
state attorneys general and private attorneys, awarding
contingency fee contracts without public disclosure gives the
impression that attorneys are winning these contracts based

on patronage alone. 39
Finally, reformers suggest that a lack of accountability
exists in the disbursement of monies. When a state prevails in
litigation, private attorneys retained on contingency receive
their percentage without consideration of the propriety of
such agreements or the debate attendant in legislative appropriations.40 Moreover, reformers argue that the exorbitant
fees paid to private attorneys siphon funds that could be used
for the public interest.41 Although contingency fees are often
presented as no cost, reformers argue that this diversion of
funds comes at a high cost to the public.42

Cost and Benefit: Why Contingency Fees between


the State and Private Counsel Can Be Useful
Despite passionate calls from reformers, many state attorneys
general continue to retain private counsel under contingency
fee contracts.43 Several legitimate reasons justify these
contracts, most of which revolve around the notion that many
states lack the resources to pay for litigation in the public
interest. Also, proponents of this use of private counsel assert
that the charges of impartiality and corruption are overblown.
All fifty states allow contingent fees in wholly private
attorney-client relationships.44 The main justification is that
contingency fees permit access to the legal system for those
who otherwise could not afford litigation.45 Similarly, proponents of allowing states to retain counsel on contingency
argue that poor states could not prosecute lawsuits without
contingency fees.46
Reformers argue that states are rich, as they possess the
power to tax or cut services.47 Proponents of contingency fees
counter by arguing that cutting services or raising taxes are
not options for poor states, which also have poor citizens.48
Attorneys general usually hire outside counsel on a
contingency basis in large tort cases, which often involve
wrongdoing that affects the public at large.49 Proponents of
contingency fees contend that the public benefits from such
litigation, and that prohibiting contingency fees permits
egregious tortslike the spill that ravages the Gulf Coast
to go unpunished and continue unabated.50 Recent actions of
several Gulf Coast states demonstrate that states often turn
to private outside counsel in order to pursue large tort cases.
In Florida, for example, questions immediately arose as to
whether Attorney General Bill McColluman outspoken opponent of contingency feeswould use contingency fees to
sue BP.51 While no agreement has yet been reached between
the state and private outside counsel, Florida Governor
Charlie Crist appointed pro bono outside counsel as part of
the formation of a private trial team for the state.52 Louisiana legislators failed in their attempt to pass a bill that would
have permitted contingency fee agreements.53 Backers of the
bill argued that contingency fees were needed to hire attorneys qualified to go up against high-powered attorneys for
oil and other firms, and that Louisiana lacked resources to
pay outside attorneys on an hourly basis.54 Louisiana Senate
President Joel Chaisson II reportedly called the legislatures
failure to pass a bill permitting contingency fee agreements

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23

despicable.55 In Alabama, Attorney General Troy King


sought Balch & Bingham, LLP to assist him in a lawsuit
against the oil companies,56 but Governor Bob Riley issued
an executive order requiring prior approval for any contingency contracts.57 In response, King stated that [BP] is one
of the biggest corporations in the world . . . . They know the
budget constrictions weve got. They are absolutely rubbing
their hands with glee at the idea we wont bring in outside
counsel.58
These debates highlight another point of contingency fee
supporters: that the resources of attorneys general should be
compared to the resources of potential defendants, which are
typically large, highly successful corporations.59 Moreover,

State legislators should approach


contingency fee caps with
utmost circumspection.
insurance companies frequently provide the costs of defense
for these corporations.60
Proponents posit several other reasons that the benefits
of contingency fee agreements outweigh the detriments.
First, they argue that reformers exaggerate the harm of such
agreements. They note that outside counsel do not supplant
attorneys general.61 So long as attorneys general supervise
litigation and make final decisions, the assistance of outside
counsel does not permit such counsel to exercise the authority of the state, so that neutrality and accountability are not
jeopardized.62
Second, they argue that prohibiting contingency fees
would discourage private attorneys from contracting with attorneys general, since the plaintiffs bar typically litigates on
contingency fees and might be resistant to litigating on any
other terms.63 Thus, abolishing contingent fees might prevent
attorneys general from retaining private counsel even when
the reasons for doing so are wholly legitimate.
Lastly, proponents of contingency fee agreements contend
that attorneys general do not need to exercise as high a level
of neutrality in civil cases as they do in criminal prosecutions. Since civil actions involve no potential deprivation of
life or liberty, the constitutional rights afforded defendants in
criminal cases are not at issue, thus obviating the need for a
high level of neutrality.64

Let the Sun Shine: The Future of Reform


While contingency fee agreements between states and private
attorneys are highly controversial, reformers should recognize that legitimate reasons exist for such agreements. At the
same time, proponents of the agreements should recognize
that the award of contingency fee contracts can facilitate

political patronage and cronyism.


Both sides of the argument would likely agree that any
award of a contingency fee contract should be an open
process. Many states have already begun to recognize this
principle.65 Public disclosure of contingency fee contract
awards both deters patronage and legitimizes these arrangements. If the public sees the way in which a contract is
awarded, it will be less likely to later suspect the legitimacy
of the contract. Floridas new legislation provides the best
mechanism for public disclosure: the Internet.66 Posting the
results of the bidding process for a contingency fee contract
on the state agencys website will effectuate public oversight
throughout the contractual process.
On the other hand, reformers should make concessions on
fee caps in order to avoid the pitfalls of caps on fees. Huge
fees are in the nature of the massive torts cases in which
outside counsel is customarily engaged.67 Most states require
greater scrutiny when potentially huge fees are at issue,68
which means more oversight of the contract-award process.
Floridas new legislation caps contingency fees at $50 million,69 which may deter private attorneys from contracting
with attorneys general in pursuit of civil litigation. Although
Florida has not yet hired paid outside counsel, debates have
begun as to whether the cap will be too low,70 since the fees
for any action against BP are expected to exceed the $3 billion in fees Florida lawyers earned from the tobacco litigation.71 Indeed, one Pensacola, Florida plaintiffs attorney estimated that the costs of preparation and expert witnesses for
a suit by the state could have easily reached $100 million.72
Thus, caps on fees may defeat the purpose of contingency
fee agreements: allowing states to pursue publicly beneficial
litigation that may otherwise be cost-prohibitive. Therefore,
state legislators should approach contingency fee caps with
utmost circumspection.
Although contingency fees often have the appearance
of impropriety, they are an integral part of the American
legal system. While these contracts can pose serious risks,
they also serve legitimate public interests. Both sides of the
debate over contingency fees between state attorneys general
and private attorneys should keep these facts in mind when
legislation is proposed both to curb their potential wrongdoing and to preserve their benefits.

Endnotes
1. See Brian Sheppard & Fiery Cushman, Evaluating Norms: an
Empirical Analysis of the Relationship between Norm-Content, Operator, and Charitable Behavior, 63 Vand. L. Rev. 55, 88-89 (2010)
(noting that the 1887 Code of Ethics of the Alabama State Bar Association permitted contingency fee agreements, but stated that they
lead to many abuses.).
2. Samuel R. Gross & Kent D. Syverud, Dont Try: Civil Jury
Verdicts in a System Geared to Settlement, 44 UCLA L. Rev. 1, 50-51
(1996).
3. E.g., Geoffrey P. Miller, Preliminary Judgments, 2010 U. Ill. L.
Rev. 165, 177-78 (2010) (noting that contingency fees create the possibility that lawyers will act in their own self-interest and urge clients

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

24

to accept settlements, when further litigation would yield greater


results for the client).
4. Mark A. Behrens & Andrew W. Crouse, The Evolving Civil Justice Reform Movement: Procedural Reforms Have Gained Steam, but
Critics Still Focus on Arguments of the Past, 31 U. Dayton L. Rev.
173, 180 (2006) (arguing that state attorneys general hiring private attorneys to handle litigation presents troubling questions and creates
several fundamental public policy problems).
5. See Op-Ed, Progress on Pay to Play, Wall St. J., Feb. 12, 2010,
at A22 (reporting that several states have taken steps to address hiring
private attorneys who represent the state on contingency).
6. See Press Release, U.S. Dist. Ct. E.D. La., In re: Deepwater
Horizon Cases Allotted to Section J Judge Barbier (July 14, 2010)
available at http://www.laed.uscourts.gov/DeepWaterBP-SecJ/
OilSpill.htm (reporting that over 55 cases have been filed against
BP and Transocean, including claims surrounding the death of 11
people, personal injuries, environmental destruction, and economic
losses).
7. See Mark Ballard, Tucker, Chaisson Tangle Over Fees, Baton
Rouge Advocate (June 23, 2010), at A6 (reporting that the Louisiana House and Senate leaders each blamed the other for a failure
to pass legislation circumventing the ban on the state hiring private
attorneys on contingency); Beth Kassab, Sides are Gearing up for
BP Lawsuit, Orlando Sentinel (June 11, 2010), at B5 (reporting
that money is a big sticking point in whether Florida will sue BP).
8. Leah Godesky, Comment, State Attorneys General and Contingency Fee Arrangements: an Affornt to the Neutrality Doctrine?, 42
Colum. J.L. & Soc. Probs. 587, 588 (2009).
9. E.g., Kan. Stat. Ann. 75-37,135 (2009) (requiring any fee
agreement between the attorney general and a private lawyer where
the fees reasonably may exceed $1,000,000 to be disclosed to the
legislative budget committee for public hearing and approval); N.D.
Cent. Code 54-12-08.1 (2009) (requiring the emergency commission to approve any contingency fee contract between the attorney general and outside counsel where the amount in controversy
exceeds $150,000); Va. Code Ann. 2.2-510.1 (2009) (requiring
any contingency fee between a state agency and a private attorney
where the fees are reasonably anticipated to exceed $100,000 to
be subject to an open and competitive negotiation process in accordance with the Virginia Public Procurement Act).
10. Brooke Jones Bacak, The Case for Regulation of Private Attorney Retention by the State of Alabama, 29 J. Legal Prof. 179, 189
(2004).
11. Godesky, supra note 8, at 610.
12. H.B. 927, 2010 Leg., Reg. Sess. (Ala. 2010); S.F. 2101, 83d
Gen. Assem., 2010 Sess. (Iowa 2010); S.B. 3059, 125th Legis.,
125th Sess. (Miss. 2010); S. 350, 118th Gen. Assem. (S.C. 20092010) available at http://www.scstatehouse.gov/ sess118_20092010/bills/350.htm (last visited Aug. 26, 2010).
13. Kan. Stat. Ann. 7537,135(e) (2009). These factors are: 1)
the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service
properly; 2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment
by the attorney; 3) the fee customarily charged in the locality for
similar services; 4) the amount involved and the results obtained; 5)

the limitations imposed by the client or by the circumstances; 6) the


nature and length of the professional relationship with the client; 7)
the experience, reputation, and ability of the attorney performing the
services; and 8) whether the fee is fixed or contingent. Id.
14. Colo. Rev. Stat. 1317304(1)(a) (2009).
15. N.D. Cent. Code 541208.1 (2009).
16. Va. Code Ann. 2.2510.1 (2009). Specifically, the bidding
process must comply with the Virginia Public Procurement Act, an
in-depth process usually used for the award of building contracts.
Va. Code Ann. 2.24300 et seq.; see also Office of the Attorney
General Commonwealth of Virginia, Special Counsel Guidelines,
http://www.vaag.com/OUR_OFFICE/ Special_Counsel_OAG_Objectives.pdf (last visited Mar. 3, 2010) (noting that the Attorney General does not typically employ private counsel under contingency fee
arrangements, but does so only for debt collection, Department of
Labor and Industry representation, and Virginia Retirement System
Asset Recovery).
17. Fla. SB 712 1(6), available at http://www.flsenate.gov/data/
session/2010/Senate/bills/ billtext/pdf/s0712c1.pdf (last visited Mar.
2, 2010).
18. Id. at 1(2).
19. Exec. Order No. 13,433, 72 Fed. Reg. 28,441 (May 16, 2007).
20. Id.
21. Godesky, supra note 8, at 599.
22. E.g., Meredith v. Ieyoub, 700 So.2d 478, 481-84 (noting that
fiscal matters of the state are the realm of the legislature, so payments to private attorneys by attorneys general violate separation of
powers).
23. Id.
24. Godesky, supra note 8, at 590.
25. E.g., Godesky, supra note 8, p. 594 (outlining the challenge to a
contingency fee contract for Oklahoma poultry industry litigation).
26. People ex rel. Clancy v. Superior Court, 705 P.2d 347, 353 (Cal.
1985).
27. Id. at 352.
28. County of Santa Clara v. Superior Court, 50 Cal.4th 35, 58 (Cal.
2010).
29. Id. at 64.
30. Bacak, supra note 10, at 180; Richard O. Faulk & John S. Gray,
Alchemy in the Courtroom? The Transmutation of Public Nuisance
Litigation, 2007 Mich. St. L. Rev. 941, 972 (2007).
31. Faulk & Gray, supra note 30, at 972.
32. Id.
33. Godesky, supra note 8, at 594 (quoting Motion of Tyson Foods,
Inc. et al. for Judgment as a Matter of Law in Light of Plaintiffs
Constitutional Violations at 2, Oklahoma v. Tyson Foods, Inc., No.
05-cv-00329-GKF-SAJ (N.D. Okla. Feb. 28, 2007).
34. Victor E. Schwartz, Kevin Underhill, Cary Silverman, & Christopher E. Appel, Governments Hiring of Contingent Fee Attorneys
Contrary to Public Interest, 23 Wash. Legal Found. Legal Backgrounder 1, 4 (2008), available at http://www.wlf.org/upload/0808-08schwartz.pdf.
35. Id.
36. E.g., Michael DeBow, The State Tobacco Litigation and the
Separation of Powers in State Government: Repairing the Damage,
31 Seton Hall L. Rev. 563, 579 (2001) (arguing that attorneys

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

25

general involved in the state tobacco litigation were motivated by the


opportunity . . . to give what was potentially a very lucrative contract . . .
to friends in the private trial bar).
37. Progress on Pay to Play, supra note 5; see also Bacak, supra
note 10, at 182 (noting that former Alabama Governor Don Siegelman hired private attorneys that contributed $69,000 to his campaign
to sue ExxonMobil).
38. Group: Lawsuit Process Unfair, Clarion Ledger (Jackson,
Miss.), Feb. 14, 2010, at A1.
39. Behrens & Crouse, supra note 4, at 179.
40. Bacak, supra note 10, at 183.
41. Faulk & Gray, supra note 30, at 975; Schwartz et al., supra note
34, at 3.
42. Faulk & Gray, supra note 30, at 975; Schwartz et al., supra note
34, at 3.
43. See Progress on Pay to Play, supra note 5.
44. Neil F.X. Kelly & Fidelma L. Fitzpatrick, Access to Justice: The
Use of Contingent Fee Arrangements By Public Officials to Vindicate
Public Rights, 13 Cardozo J.L. & Gender 759, 768 (2008); see
also Model Rules of Profl Conduct R. 1.5(c) (permitting the
use of contingency fees generally).
45. E.g., Saucier v. Hayes Dairy Prod., Inc., 373 So.2d 102, 105
(La. 1978) (noting that contingency fee agreements promote the
distribution of needed legal services by . . . making legal services
available to those without means).
46. E.g., Kelly & Fitzpatrick, supra note 44, at 760-61 (noting that
the Rhode Island Attorney General hired outside counsel on contingency for litigation against lead paint manufacturers because of the
limited financial and legal resources of the department).
47. Faulk & Gray, supra note 30, at 971, 975.
48. Kelly & Fitzpatrick, supra note 44, at 779.
49. See Godesky, supra note 8, at 592-93 (noting that Oklahomas
Attorney General retained private counsel on a contingency fee
basis to helping in suing the poultry industry for polluting the states
waters); Kelly & Fitzpatrick, supra note 44, at 760-61 (noting that
Rhode Islands attorney general used contingency fee agreements in
suing lead pigment manufacturers); Julie E. Steiner, The Illegality
of Contingency Fee Arrangements when Prosecuting Public Natural Resource Damage Claims and the Need for Legislative Reform,
38 Envtl. L. Rep. News & Analysis 10,773, 10,775-77 (2008)
(highlighting the rise of contingency fees for outside counsel in natural
resource damage cases brought on behalf of states under the Comprehensive Environmental Response, Compensation, and Liability Act).
50. Kelly & Fitzpatrick, supra note 44, at 780; but see Faulk &
Gray, supra note 30, at 974 (criticizing this type of regulation by
litigation for escaping the usual constitutional demands of regulation through legislation).
51. Kassab, supra note 7, at B5.
52. Tresa Baldas, Floridas Outside Counsel Undeterred by Odds,
Miami Daily Bus. Rev., July 1, 2010, at A6.
53. Will Sentell & Marsha Shuler, Bill to Hire on Contingency
Fails: Legislation would have Let State Employ Attorneys in Oil
Lawsuits, Baton Rouge Advocate (June 22, 2010), at A1 (reporting that a bill permitting Louisianas attorney general to hire outside
counsel on contingency failed in the legislature).
54. Id.

55. Id.
56. Kim Chandler, King to Sue BP for Economic Hit to State,
Birmingham News (Ala.), July 23, 2010, at 1. If successful, Balch
& Bingham will receive fourteen percent of the recovery. Id.
57. George Talbot, Gov. Bob Riley, Attorney General Troy King
Trade Jabs over BP Lawsuit, Al.com, Aug. 14, 2010, available at
http://blog.al.com/live/2010/08/gov_bob_riley_attorney_ general.
html.
58. Id.
59. Id.
60. Id.
61. E.g., Kelly & Fitzpatrick, supra note 44, at 779 (noting that, in
the lead pigment litigation in Rhode Island, public attorneys make
and approve all substantive decisions); but see Bruce Yandle et al.,
Bootleggers, Baptists, and Televangelists: Regulating Tobacco By
Litigation, 2008 U. Ill. L. Rev. 1225, 1236 (2001) (arguing that
private attorneys were instrumental in initiating the [tobacco company] suits and negotiating the settlements).
62. See Priceline.com, 103 Cal. Rptr. 3d at 532-33 (upholding a
contingency fee arrangement that required the attorney generals
prior approval for all substantive matters regarding litigation and
that, in practice, involved extensive supervision by the attorney
general).
63. See Gross & Syverud, supra note 2, at 16 (reporting that, for
trials occurring in 1990 and 1991, individual plaintiffs retained attorneys via contingent fee in 96% of cases and business and government plaintiffs did so in 43% of cases).
64. See Marshall v. Jerrico, Inc., 446 U.S. 238, 248-49 (1980)
(noting that constitutional interests in neutrality are not greatly
implicated if a prosecutor is offered an incentive to secure a civil
penalty).
65. See note 9 and accompanying text.
66. Fla. SB 712 1(6), available at http://www.flsenate.gov/data/
session/2010/Senate/bills/ billtext/pdf/s0712c1.pdf (last visited Mar.
2, 2010).
67. See notes 42-55 and accompanying text.
68. E.g., Kan. Stat. Ann. 75-37,135(a)(1) (requiring a proposal
to be submitted to the legislative budget committee when attorneys
fees reasonably may exceed $1 million); Minn. Stat. Ann. 8.065
(2005) (requiring a proposed contract that is reasonably expected to
exceed $1 million to be submitted to the Legislative Advisory Commission); N.D. Cent. Code 54-12-08.1 (requiring approval by the
emergency commission when the amount in controversy exceeds
$150,000 and the special assistant attorney general is retained on a
contingency fee basis).
69 Fla. SB 712 1(5), available at http://www.flsenate.gov/data/
session/2010/Senate/bills/ billtext/pdf/s0712c1.pdf (last visited Mar.
2, 2010).
70. Compare Kassab, supra note 7 (quoting Florida Attorney
General Bill McCollum as saying the he is confident that the cap
will not be a factor) with Paul Flemming, Legal Fee Ceilings
Attract Teams from Bargain-Basement, Fla. Today (Meldbourne,
Fla.) (May 23, 2010) at B8 (arguing that the cap will deter private
counsel from pursuing the BP litigation).
71. Flemming, supra note 70, at B8.
72. Id.

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or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

26

Tough Decisionsor Easy Ones That Half Your Colleagues


Will Disagree With
Peter J. Winders
Failure to decide is a decision, too.
Great point. Well pick that one.
Overheard.

ollowing are a couple situations that I have found


difficult, either because there are conflicting principles
dictating what to do, or because the right answer is
hard to swallow, or because there was no formal system
in place to support or control individual decision-making.
Many readers will find them easy, and will be surprised that
the lawyers in the small (or large) group that every lawyer
assembles for reality check purposes will come to opposite
conclusions.

Client/senior lawyer destroying documents?


In the early days of a lawsuit, Associate is attending preproduction document review, with Senior Lawyer and House
Counsel. House Counsel rips a 2 page document from a
file, shows it to Senior Lawyer, tears it into pieces and
throws them in the waste can. Associate is bothered by this.
She has heard the stories about clients and their lawyers
destroying documents. She knows that as a lawyer on the
case she has some responsibility. She has also heard stories
about the whistleblowers on such things and remembers
reading about the professional nosedive that Mary Poppins
(or whoever it was at Enron or Arthur Andersen) took. What
should she do?
What she did do is retrieve the pieces of the document
from the waste can and, averting her eyes, put them in an
envelope, in her briefcase, so she could worry about it more
at home. Eventually, at someones urging, she asked me
what to do. I had her send me the pieces, and had a paralegal tape them back together. Anticlimactically, it was some
off-color joke that never should have been in that or any
other file, and it was appropriate to extract it and throw it
away.
What was hard about that? Nothing from my point of
view. From Associates point of view, it demonstrates the
advantage of having a General Counsel to deal with such
questions. What she did was about half right. She saw a
problem (that is the half, or most of it). She could have
asked Senior Lawyer about it and taken his word for it.
After all, one of the things being checked for is that the
files did not contain matters that should be in other files or
not properly a part of what was requested, and a junior can
in general accept the decision of her supervisor. Bring the
Peter J. Winders is General Counsel, Carlton Fields, Tampa, Florida.

document back until she figured out what to do was not all
that bad, either. Asking her mentor what to do was contrary to firm policy to direct such questions to the General
Counsel, but understandable, and that at least resulted in
the appropriate consultation. If the document had been
improperly pulled, we would have resolved that problem
appropriately.

Confidential information conflicts.


Confidential information conflicts are among the most
difficult and are particularly difficult to explain to firm
management. When one of our retired partners was practicing with Dewey Ballentine in the 1950s, he was told by an
oil company president, Young man, these antitrust laws of
yours are out of step with American Business. An ethics
advisor will get a similar reaction more often in discussions
about confidential information conflicts than most others.
A confidential information conflict is this: In representing Client A you learn something that would be vital to
your representation of Client B. Your obligation to keep
confidential any information from Client A prevents its
disclosure to Client B without As consent. A refuses to
consent. Therefore you have information vital to Bs representation that you cannot use. This puts a material limitation on your representation of B that requires withdrawal in
the view of most (or many) commentators.
Lawyer A represented Client 1, a family company with
a permitted environmentally sensitive business that is currently very difficult to permit. The representation had to do
with a claimed license violation, and it is successfully concluded. Client 2, a long-time firm client in environmentoriented businesses wants to buy Client 1s facility or the
entity owning it. Client 1, now a former client, is enthusiastic and is willing to waive any confidential information
limitations and to allow the firm to represent Client 2 in the
transaction. As General Counsel I knew something about
Client 1 because I had been consulted several times with
goofy client issues during the prior representation. I asked
the lawyer who handled that representation what would be
her first advice to Client 2 if we had the unfettered ability
to advise all we knew. Without hesitation, Id tell them not
to do business with these people. They are crazy, literally in
the case of brother number one, and maybe the rest as well.
Any decision they make, they back out of, and their best
friends one day they suspect of fraud the next. No matter
what deal they make, they will end up in litigation, both
with the opposite party and with themselves as well.
(Continued on page 31)

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

27

Crumbs from the Table


Lawrence J. Fox

hose who seek justice for denizens of death row


were overjoyed on June 14 when the United States
Supreme Court decided, 7-2, to grant some relief to
the appellant in Holland v. Florida. This was a too rare event
that spoke volumes about the current dismal state of play in
the Supreme Courts jurisprudence governing the availability
of habeas relief to those facing the ultimate punishment. But
the joy was only prompted by how little the capital defense
bar really has to celebrate, not unlike the famished expressing gratitude over the availability of nothing more than stale
white bread. And the real lesson from this victory is how
terribly unjust is the law that would allow the sins of a death
row inmates lawyer to be visited upon the helpless client.
Such a result might be marginally acceptable in a world in
which the injured client has a malpractice remedy against
his or her counsel. But it is impossible to accept or reconcile
with the individuals right to habeas relief enshrined in the
United States Constitution.
The centerpiece of Mr. Hollands case was the Congressional mandate found in the chillingly named Antiterrorism
and Effective Death Penalty Act (AEDPA) passed by Congress in 1996 to respond to outcries that the judicial process
in handling collateral claims in capital cases was taking too
long and involving too many proceedings. The result was an
extraordinary piece of legislation that required the federal
courts to give such obeisance to state court proceedings that
it was no longer enough for the condemned to prove constitutional error. Henceforth the constitutional error had to be an
unreasonable application of clearly established Federal law,
as determined by the Supreme Court of the United States,
meaning that executions in America would proceed despite
the fact that profound constitutional error occurred.1
The act also established a one year statute of limitations
for filing the only permissible federal habeas petition. That
statute of limitations was to run from the day the Supreme
Court denied certiorari on the death row inmates direct
appeal from his or her conviction. And the statute was stayed
for the period while any state habeas proceeding was pending
(though not for any cert. petition therefrom). Finally, the
statute clearly barred a federal habeas claim if the petition
were filed outside the one year period.
It was with this one year statute of limitations that Mr.
Hollands case collided, and the specific uncontradicted facts
of that collision bear repeating in extenso.
In 1997, Holland was convicted of first-degree murder and
sentenced to death. After unsuccessful state appeals, Hollands petition for certiorari to the Supreme Court was denied
on October 1, 2001, at which point the one year AEDPA
limitations clock began to run.

On November 7, 2001, Florida appointed attorney Bradley


Collins to represent Holland but it took until September 19,
2002316 days after his appointment and 12 days before
the 1-year AEDPA limitations period expiredfor Collins to
file a motion for postconviction relief in the state trial court.
That timing left Holland with only 12 days to file a federal
petition, assuming the state proceedings concluded without
any relief. Despite that short deadline, Collins asked for Hollands complete confidence and support as we litigate your
case to the state and federal trial and appellate courts.
While Hollands petition remained pending for three
years, Holland regularly wrote Collins for assurance that
Hollands federal review would be timely filed. As time
passed and no responses were received, Holland became
increasingly dissatisfied with Collins and even asked the
Florida Supreme Court to replace Collins because Holland
claimed he had been abandoned. The Florida Supreme
Court, however, barred Holland from filing these pro se
papers (including the request to replace Collins), because
Holland was represented, a classic catch-22.
One letter Holland wrote to the Florida Supreme Court
captures the problem:
[I]f I had a competent, conflict-free, post-conviction,
appellate attorney representing me, I would not have
to write you this letter. Im not trying to get on your
nerves. I just would like to know exactly what is happening with my case on appeal to the Supreme Court
of Florida.

Collins did argue Hollands appeal before the Florida Supreme Court on February 10, 2005. And even after that oral
argument, Holland continued to urge Collins to remember
the need to file a federal petition on a timely basis.
Another letter reflects Mr. Hollands mindset:
Also, have you begun preparing my 28 U.S.C. 2254
writ of Habeas Corpus petition? Please let me know, as
soon as possible.

Yet Collins let this and Hollands other letters go


unanswered.
On December 1, 2005 the Florida Supreme Court issued
its mandate, rendering final its decision to affirm the denial
of relief. That started the 12-day period left to Holland by
Collins earlier delay.
Sadly, Holland had no idea about this. He heard nothing
from Collins, and Collins filed no federal petition. Hollands
letter to Collins of January 9, 2006, four weeks after the
statute ran, is particularly poignant:

Lawrence J. Fox is a partner of Drinker Biddle & Reath LLP in Philadelphia, PA.
Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

28

I write this letter to ask that you please let me know


the status of my appeals before the Supreme Court of
Florida. Have my appeals been decided yet?
Please send me the [necessary information] . . . so that
I can determine when the deadline will be to file my 28
U. S. C. Rule 2254 Federal Habeas Corpus Petition, in
accordance with all United States Supreme Court and
Eleventh Circuit case law and applicable Antiterrorism
and Effective Death Penalty Act, if my appeals before
the Supreme Court of Florida are denied.
Please be advised that I want to preserve my privilege
to federal review of all of my state convictions and
sentences.

Then, incredibly enough, it was Holland himself, working


in the prison library, who on January 18, 2006 discovered
that the Florida Supreme Courts adverse decision had been
filed more than a month earlier, news that prompted him
to file a pro se petition immediately. Holland also wrote
Collins, who, dismayingly, incorrectly and in contradiction
of his earlier assurances, informed Holland that the time for
filing a federal petition had expired before Collins had ever
been hired and, therefore, Collins failure to act was harmless error.
Collins never answered Hollands subsequent plaintive
letter correcting Collins mistaken view of the law and Collins, of course, never filed a federal habeas petition. That left
Holland to rely on his pro se federal petition, filed 35 days
after the statute had expired. That also left Holland and his
new counsel limited to arguing that Holland was entitled to
equitable tolling of the ADEPA one year statute based on
his lawyers misconduct. After all, Mr. Holland had done
everything he could do to make sure his lawyer complied
with AEDPA, and barring his claim on this basis was the
very definition of inequitable.
One might then think this would be a lay-down. A client
has a right to petition for habeas relief. A client has a right
to be represented by a lawyer if the client chooses to do so
(though no right to an appointed lawyer). A client desperately needs a lawyer to review the record, identify error, gather
evidence, prepare briefs and present argument. Indeed,
habeas jurisprudence is so labyrinthine that the lawyers who
can master this body of law are thought to be the neurosurgeons of the legal profession.
But this is habeas land where one finds doctrine after
doctrine so disposed to denying reliefand trying to do so
unceremoniouslythat almost all expectations of justice
and fairness must be abandoned in trying to find the narrowest of pathways to relief. And so it was no surprise when
the Eleventh Circuit, in its infinite wisdom, dismissed Mr.
Hollands pleas out of hand as not worthy of consideration
when, under its view, the client is responsible and, therefore,
must suffer the consequences of his or her lawyers lapses.
As the Eleventh Circuit observed:

Pure professional negligence is not enough. This is a


pure professional negligence case. Holland v. State of
Florida, 553 F. 3d at 1339.

Then the Supreme Court granted certiorari in Holland v.


Florida, an action that initially brought fear and trepidation
to those who thought the Courts intent in so proceeding was
to make sure the bleeding heart Ninth Circuit, which might
be more inclined to endure equitable tolling given its liberal
leanings, henceforth would follow the callous, unforgiving
Eleventh in this important regard.
But for once our paranoia was unjustified. In the Supreme
Courts decision, Justice Breyer, speaking for a 7-2 majority,
concluded that Mr. Holland could have another day, a victory
of sorts for a man on death row. Why the of sorts? In part,
because Mr. Holland even now is not free to proceed with
his request for federal review. With those compelling facts,
the Supreme Court only remanded for further proceedings
consistent with the opinion. Though the Court concluded that
the Eleventh Circuit was wrong, and that there were circumstances in which the condemned could escape from the
consequences of his or her lawyers derelictions, the Court
left intact the obscene doctrine that a lawyers mere negligence or even gross negligence was not enough.
So the lawyer miscounts the number of days for filing.
The courthouse door is slammed shut on the client. The
lawyer thinks the statute of limitations is tolled during a state
petitioners petition for certiorari from denial of state habeas
relief. The about-to-be executed is refused entrance at the

The lawyers who can master this


body of law are thought to be the
neurosurgeons of the legal profession.
courthouse door. The lawyer forgets about the case until it
is too late. The death row denizen is summarily denied a
chance to rectify constitutional error in the only forum in
which an Article III judgea judge with life tenure and the
ability (if not the inclination) to ignore the headlines and do
the right thingpresides.
But the Court did conclude that the relief seeker need not
go so far as to prove that his/her lawyer had turned against
the client. Rather, the Court decided that there could be
some extraordinary circumstancesas yet undefinedin
the interstice between gross negligence and affirmative
turncoat that could give rise to equitable tolling. Yet even
there the Court could not bring itself to determine, on the
uncontradicted facts presented by Mr. Holland, whether this
was such a case! Thus, the remand described earlier and the
description of mere crumbs falling from the table, rather than
a chance to enjoy even the skimpiest of meals.

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or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.

29

Why this extraordinary hostility? One answer, offered


by the more conservative wing of the Court is the notion
that Congress has entered the fray, mandated a short, difficult to calculate statute of limitations and the courts are
rendered helpless to do anything about it. Justice Scalias
instructive and frightening dissent gives full voice to this
draconian proposition. Even when it comes to the great
writ, where Congress acts the courts must follow.
There is also more than a hint here that if the courts
were free to release those on death row from the consequences of their lawyers ethical and substantive errors,
somehow that would permit lawyer and client to game a
system that is designed to prevent any delay in the swift
application of the lethal injection or Utahs blood curdling
firing squad.2
I have thought long and hard about that oft-repeated
charge and remain mystified as to how any lawyer could
reach the conclusion that his or her client would be better
off missing a deadline. And even if the lawyer could be so
inept as to reach that conclusion, that lawyer would have to
recognize that such negligent conduct on the lawyers part
would have profound consequences for the lawyers law license. In short, granting capital defendants relief from their
lawyers negligence, at least as to deadlines, is unlikely to
contribute to less effective execution of executions.
Moreover, the consequences of not granting relief are
tragic. This is because, whatever can be said of the im-

The finality and irreversibility of


capital punishment cry out for the
most punctilious observance of all
constitutional protections.
portance of assuring a constitutionally sound adjudicative
process for anyone accused of a crime (a topic on which
a lot can be said), the finality and irreversibility of capital
punishment cry out for the most punctilious observance
of all constitutional protections. Moreover, as to all other
wrongfully imprisoned criminal defendants, the visiting of
the errors of the lawyers on the client, while devastating,
could nonetheless, as a small consolation, leave the abused
client with a civil action for malpractice and/or breach of
fiduciary duty. But that relief, though arguably available,3
is no consolation whatsoever to the client who is about
to be executed and therefore denied any hope whatsoever
of enjoying any damage award the lapsed lawyer may be
forced to pay.
The Holland case demonstrates the point. If Mr. Holland were denied a chance to file a federal habeas petition
on remand, he would have exhausted all available remedies

to overturn or ameliorate his conviction. He could then


sue Mr. Collins and, if he were really fortunate, he could
get that case adjudicated while still alive. He would have
to demonstrate, of course, his actual innocence, relief that
might not be available outside of habeas proceedings. But
if it were, he would be required to prove the case within the
case, i.e., that he would have won on federal habeas and
that on a retrial or resentencing his life would have been
spared. Even damages might be awarded. But the one thing
that would not occur is the staying of the executioners
hand. And that is a result our system of justice should view
as intolerable.
But the real reason why Holland v. Florida leaves all
those who seek justice totally unsatisfied is that the opinion
left totally intact two elements of the current jurisprudence
that are quite simply incompatible with any acceptable
system of justice. The first is the notion that in evaluating
whether lawyer lapses are to be imputed to the lawyers
client, there should be an evaluation of whether the client
was diligent. Indeed, to justify getting to his conclusion
about Mr. Hollands lawyer, Justice Breyer quotes, even
more than this article does, from the extensive record of
Mr. Hollands attempts to goad his lawyer into action on a
systematic and quite frequent basis.
But there is no reasonno reason whatsoeverto put
such a burden on the client. Indeed, the doctrine is entirely
inconsistent with the roles of lawyer and client as defined
in all applicable professional rules of conduct. While the
client certainly has an obligation to cooperate with the
lawyer when the lawyer makes requests, all those ethical
rules require is that the client have a lawyer, and, once
that lawyer is available, the lawyer has sole responsibility
for initiating a required action and then fulfilling what is
required. Thus, there is no reason to treat the client who is
pursuing state habeas, who is lucky enough to have a lawyer
and who, once that lawyer is secured, decides to go to sleep,
any differently from the client who calls his or her lawyer
every day.
Each is entitled to competence. Each is entitled to diligence. Each is entitled to communication. Each is entitled
to a lawyer who meets the standard of care. Each is entitled
to a lawyer who tells the client what is required and by
when it must be accomplished, not vice versa. And so any
distinction to be drawn between those two clients has no
basis in the law governing lawyers, nor should it have any
basis in the jurisprudence of capital collateral litigation.
Finally, and most sadly, the Court perpetuates the notion
that the degree of recklessness of the lawyer must be taken
into account in deciding which clients are entitled to relief.
So under the current jurisprudence, post Holland v. Florida
(as it has been up until now), the client whose lawyer miscounts the days will have the lawyers sins visited upon the
client. Whereas, the client whose lawyer engages in extraordinary conduct in missing the deadline will somehow
not have the lawyers conduct visited upon the client. From
the clients perspective and the perspective of the system

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
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of justice, that is a distinction totally without a difference;


there is no reason to think that the client whose lawyer
merely acted negligently is any less entitled to relief from
that conduct than the client whose lawyer has acted egregiously. In either case, the client is barred from entering
the courthouse door because of conduct totally out of the
clients control, by a lawyer who had an absolute obligation
to represent the client competently and diligently and in
compliance with all applicable deadlines, by an agent who
clearly has betrayed his principal.
During oral argument of Holland v. Florida Justice Alito
recognized this point, but for the opposite purpose. He
seemed to agree that it was a distinction without a difference, but he expressed the view that the client in both cases
should suffer the consequences of the lawyers conduct.
Indeed, he used his concurrence to emphasize how both the
negligence and the gross negligence of the lawyer should
with equal force be visited upon the client. For this proposition Justice Alito and others rely on the notion that the
lawyer is the agent of the client and, therefore, under common principles of agency law, the principal is responsible
for the conduct of his or her agent.
But the lawyer-client relationship, though it operates
generally under agency principles, is an extraordinary
one. The lawyer is the one with all the skill, background,
experience, education, understanding and responsibility. In
the lawyer-client relationship the clients responsibilities
are virtually non-existent. Simple cooperation is enough. It
is the lawyer who has all the knowledge and all the obligations. As a result of the foregoing, so long as the client did
not contribute to the missed deadline, then the client should
be entitled to full relief, regardless of how the lawyers

conduct is characterized, from simple mistake to a hostile


attack on the clients interests. Let us hope that slowly we
will succeed in getting the United States Supreme Court to
see it that way.

Endnotes
1. See 28 U.S.C. 2254(d)(1); Woodford v. Visciotti, 537 U.S.
19, 25-27 (2002) (per curiam) (federal court of appeals erred in
characterizing state court decision as having unreasonably viewed
aggravating evidence to be so overwhelming as to render trial
counsels (assumed) inadequacy nonprejudicial: given extensive
and severe aggravating evidence in case (which Supreme Court
itemizes) and given that most that could be said about federal and
state courts differing views of evidence was that federal court perhaps was correct on merits, court of appeals should have concluded
at the very least that the state courts contrary assessment was not
unreasonable and should not have substituted its own judgment
for that of the state court). See also, e.g., Uttecht v. Brown, 551
U.S. 1, 20 (2007) (state courts application of rules announced in
Witherspoon v. Illinois, 391 U.S. 510 (1968), and Wainwright v.
Witt, 469 U.S. 412 (1985), for removal of venireperson based upon
attitude toward capital punishment could not be deemed unreasonable application of federal law under section 2254(d)(1) because
trial court . . . supervised a diligent and thoughtful voir dire,
record does not show the trial court exceeded . . . [its] discretion
in excusing venireperson pursuant to Witherspoon-Witt rule, and
reviewing state appellate court identified the correct standard
required by federal law and found it satisfied).
2. The first draft of this was written on the day of Ronnie Lee
Gardners scheduled Utah execution in that manner.
3. Albeit as a general proposition only to those who can prove
actual innocence by successfully pursuing habeas relief.

Tough Decisionsor Easy Ones That Half Your Colleagues Will Disagree With
(Continued from page 27)

I explained to Management (who happen to be more or


less coextensive with the lawyers closest to Client 2) that we
could not represent Client 2 in an acquisition because of a
confidential information conflict.
But Client 1 will consent.
Before we get the consent we will have to tell Client 1
what we will say about them: that they are unstable, unreliable and untrustworthy and that Client 2 should forget about
the deal. I dont think we can imply that that disclosure is
one Client 1 should consent to, even if they have separate
counsel.
Surely we can word a consent broad enough to cover
what we have to advise Client 2, that will not be that
explicit. We have imaginative lawyers. I have negotiated
language like that many times.
You have negotiated things at arms length in settlement
agreements, broad language that would allow you to do what
you want without telling the adversary exactly what you are

thinking about, but here you are dealing within a fiduciary


relationship where not only the words, but a full explanation
of what they mean as a practical matter is required.
How can I explain to Client 2 that we cant represent it
even when Client 1 has told them they will consent? We are
liable to lose the client. You are taking this too far.
Tell them we have a confidential information conflict.
Tell them what a confidential information conflict is. Tell
them that I have concluded that the confidential information
is such that we cannot ask for a waiver. Both the CEO and
the CFO are very clever businessmen. They will probably
understand.
Fortunately, I think, Client 2 backed off. The last recommendation was analogous to a noisy withdrawal. Maybe
Client 2 backed off because of it. Too much information?
Arguable, I guess, but I dont think so. Client 1 is now in
litigation with the follow-on purchaser, and Client 1s constituents among themselves. Client 2 still loves us.

Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
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Published in The Professional Lawyer, Volume 20, Number 3. 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
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