Speaking of infringements on what is now the scope of attorney-client privilege, an Oregon law professor has proposed to make environmental protection part of lawyers’ ethical duties. [Daily Climate; Tom Lininger, “Green Ethics for Lawyers,” Boston College Law Review, 2016; Scott Greenfield] Some backers hope the idea will encourage lawyers representing the fossil fuel industry, in particular, to disregard conventional attorney duties of loyalty to clients; indeed, it might someday serve as grounds for them to be disciplined if they refrain from betraying client interests in various situations.
The Florida Bar Board of Governors, overruling a committee and staff recommendation, says that a lawyer’s targeted text message does not violate an ethical prohibition on unsolicited phone calls in the immediate aftermath of an accident. [AP/WKMG] Next step: auto-send when a sensor detects that an airbag has gone off.
Former Arkansas Governor and presidential candidate Mike Huckabee responds as follows to a federal judge’s contempt finding against Rowan County clerk Kim Davis:
Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country. We must defend #ReligiousLiberty!
— Gov. Mike Huckabee (@GovMikeHuckabee) September 3, 2015
Henceforth when I think of Gov. Mike Huckabee it will be as someone unfamiliar with the legal concept of contempt of court. Gabriel Malor has dissected Huckabee’s enthusiasm for a purported right to defy SCOTUS rulings.
Kim Davis purges the contempt if she either carries out her public duties or quits her public office. So she is not in jail for refusing to violate her religion, unless her religion requires her to keep her public job (cool religion!). And while the traditional contempt power of the Anglo-American courts does generate various disturbing results — jailing dads for breaking a court order to see their kids, for example — pressure to resign a public office rates, to me, fairly low on the scale.
Speaking for myself, if my lawyers encouraged me to commit contempt of court, I might begin to wonder whose side they were on. Kim Davis’s Liberty Counsel lawyers, of course, were at the center of the extraordinary Miller-Jenkins case, much covered at this site, in which a client not only defied a court order but kidnapped a child along the way. And from Michelle Meyer, professional obligations of lawyers counseling clients re: contempt. (N.B.: Staver says Liberty Counsel “would never counsel a client to violate the law.”)
Plus: As Chris Geidner notes at BuzzFeed, Kentucky does not provide for recall of county clerks or removal by the governor for official misconduct. And Carly Fiorina, grown-up in the room: “when you are a government employee, I think you take on a different role.”
P.S. In general, courts have a range of remedial options when faced with contempt, such as fines. Their discretion is bounded by various factors; for example, they are not supposed to resort to harsher remedies if milder ones would obtain compliance. Many of the comparisons being bandied about, by the way, involve officials who were defying some law but were not themselves personally under a court order not to do so.
A curious argument making the rounds posits it as somehow relevant that marriage law changed after Davis won elected office, supposedly upsetting her reliance on expectations of what duties she would be called on to perform. That’s not really a legal question, in the sense of casting any doubt on whether she is expected to follow the laws of Kentucky and the United States in current form if she wants to hold office. It’s more of a union shop steward’s argument — “you can’t change my job duties unless you bargain with me first.”
And: Thoughtful Dan McLoughlin what-goes-around-comes-around on lawlessness, Kim Davis, and the pervasiveness of double standards.
We’ve covered this topic before, but Mike Masnick at Techdirt has a slew of revealing new details on how Mississippi attorney general Jim Hood acted as cat’s paw for Hollywood studios in his legal battles against Google. Former Mississippi attorney general Michael Moore, another longtime Overlawyered favorite, plays a key role in the story as well. Our coverage of Hood’s work over many years is here.
- Judge lifts gag order against Reason magazine in commenter subpoena case, and U.S. Attorney’s Office for Manhattan is shown to have behaved even more outrageously than had been thought [Nick Gillespie and Matt Welch, Ken White/Popehat (magistrate’s approval of gag order looks an awful lot like rubber stamp; AUSA directly contacted represented party), Paul Alan Levy (when bloggers push back, gag orders tend to get lifted), Matt Welch again with coverage roundup]
- Maryland authorities clear “free range” Meitiv family of all remaining charges in kids-walking-alone neglect case [Donna St. George, Washington Post]
- Disgraced politico Monica Conyers sues McDonald’s over cut finger [Detroit News]
- American Law Institute considers redefining tort of “battery” to protect the “unusually sensitive”, Prof. Ronald Rotunda on problems with that [W$J]
- “Did you ever falsely represent yourself as an attorney?” asks the lawyer to her client in front of reporter [Eric Turkewitz]
- Feds endorse alcohol-sniff interlock as new-car option, critics say eventual goal is to force it into all cars, assuming rise of self-driving cars doesn’t moot the issue first [Jon Schmitz/Tribune News Service]
- Echoes of CPSIA: regulatory danger is back for smaller soap and cosmetic makers as big companies, safety groups combine to push Personal Care Products Safety Act [Handmade Cosmetic Alliance, Elizabeth Scalia, Ted Balaker, Reason TV and followup (Sen. Dianne Feinstein objects to “nanny of month” designation, points to threshold exemptions for smaller businesses), earlier on predecessor bills described as “CPSIA for cosmetics”, National Law Review (panic over recent NYT nail salon expose might contribute to momentum)]
And critics such as lawprof Tim Wu in the New Yorker aren’t ready to accept as an excuse the genuineness of Tribe’s belief in the argued-for positions [John Steele, Legal Ethics Forum] Perhaps the idea is that strong lawyers — like cartoonists? — have an obligation not to “punch down,” whether or not justice in a given case is on the side of the putatively less empowered party.
I’ve got an extensive discussion of law professors’ real-life litigation involvements in my book Schools for Misrule.
Counsel’s Ninth Circuit arguments on behalf of copyright troll Prenda Law did not go well, to put it mildly. Trouble was evident even before Judge Pregerson commented, regarding the clients, “They should have asserted the Fifth Amendment because they were engaged in extortion.” [Ken at Popehat; Joe Mullin, Ars Technica] More on the Prenda Law saga here.
The courts themselves reacted vigorously against the legal shenanigans of a copyright-mill mass filing enterprise built on the IP rights of the Las Vegas Review-Journal. Nevada bar discipline authorities, however, didn’t: “disciplinary matters have a higher standard of proof than almost all civil matters in a judicial setting.” [Nicole Hyland, Orange County Register, earlier]
In Altoona, Pa., a private philanthropic group assisted by local businesses has funneled millions of dollars to local prosecutors to go after illegal drug cases [Pittsburgh Post-Gazette] Leaders of the group, called Operation Our Town, “said they don’t pressure prosecutors, and only publish the annual arrest and prosecution numbers as a way to raise funds.” Still, the practice sheds light on the changing status of privately assisted prosecutions, which were common in the Nineteenth Century but then came under an ethical cloud:
“It’s pretty much disappeared, in part because we want disinterested prosecutors who answer to the public, and not to individuals,” said Bruce A. Green, director of the Stein Center for Law and Ethics at Fordham University in New York.
Decisions by courts in California and Tennessee, among other places, have disapproved of private subsidies to prosecutors in cases where private parties had themselves been victimized by a crime or wanted to see more enforcement of obscenity laws. On the other hand, insurance and banking industry financial participation in efforts to investigate crimes like insurance fraud and bank robbery is widely accepted, although some trial lawyers have raised questions about insurers’ role.
In Key West, Fla., last year, nonprofit groups steered funds to underwrite a local prosecutor assigned to handle drunken driving cases. The arrangement died after defense attorney Jiulio Margalli sued, saying it violated state law.
“Do you want the motivation to be justice,” asked Mr. Margalli, “or do you want the motivation of the prosecutor to be a guilty verdict so that that [office] could continue to receive funding from the organization who paid them?”