Judicial Ethics

Blasts from the past.

First, just a heads up that there will be some design changes taking place here at Faughnan on Ethics around the beginning of October 2022 so keep an eye out for that.

Second, I know I haven’t written about anything recently but today is a day to knock out bunch of updates on things that are topical again even though it’s really been a long, long time since I last wrote about them.

Third, I do aim to do better in terms of more frequent content on here after the design changes kick in.

Okay … with that out of the way. What are these topics to knock out? Glad you asked.

I have not written a word about the first season of Serial or shared my thoughts on the Adnan Syed situation in forever. Earlier this month though, Syed is back in the news and in a big way. (Editor’s note — memory is a really fickle thing. Although I did write a good bit about ethics issues involved in Making a Murderer show, the only time I’ve ever mentioned Serial had nothing to do with the subject matter of its first season. Oops.

More than 20 years after his conviction, prosecutors handling his case have now communicated to a court in Maryland that they no longer feel confident in the reliability of his conviction because of items they have now identified that were not turned over to the defense during the original trial. Now up until this point the saga the focus of the issues with the lawyering in the case all fell upon whether Syed had been represented by competent defense counsel.

You can read one of the more comprehensive articles about the latest developments here. But the ethics issues at play now focus on whether the prosecution team complied with its obligations under Maryland’s version of RPC 3.8(d). The current prosecutors charged with responsibility for the case certainly do not appear to think so and, as a result, we have this very high-profile example of prosecutors complying with ethical obligations that would be imposed on them under ABA Model Rule 3.8(g), even though curiously Maryland has not adopted those provisions.

And, today, the court has vacated his conviction altogether.

I’m guessing we might just get a bonus episode or two of the Serial podcast revisiting its story from season one as well.

Another topic I have not written about in years (Editor’s note: I actually did write about this one though, honest.) involves the use of the Swiss Verein as a structure for very large law firms and whether there is any reason for firms to make themselves think that conflicts of interest shouldn’t apply to that structure as it would for other situations. Denton’s is the most prominent law firm employing the structure and they were the focus of my writing in the past on the subject.

Their travails with the conflicts problem have continued and now, the Ohio Supreme Court has refused to weigh in to overturn a malpractice verdict against Dentons. You can read a Law360 article about the end of the appeals process here. The end of the road on this litigation appears to again confirm what has always seemed to make sense to me — the way that a firm holds itself out as one law firm will override any efforts to claim that intricacies of corporate law can avoid imputation of conflicts within the firm as a whole. Fundamentally, if that analysis can be used to force three lawyers who only intended to share office space to have to share conflicts if they don’t make clear to the world that they are not one law firm but just three solo practitioners sharing an office, then there is no good reason that the same imputation shouldn’t happen to a firm with thousands of lawyers that brands itself as one firm.

For Denton’s, the outcome is a more than $30 million verdict against it for malpractice stemming from a conflict in the patent case I wrote about many years ago. You can read the April 28, 2022 opinion in Revolaze v. Dentons from the Ohio Court of Appeals here.

In another matter of much less significant importance (beyond being important to the people involved), a judge in Indiana who got into a bad scrape leading to a shooting that I wrote about a few years ago has continued to have some serious issues and at the end of July 2022 was back in the news for resigning and agreeing never to seek or hold judicial office for the rest of her life. This agreement was reached as a way for resolving new ethics charges that flowed from a separate incident involving a charge of domestic battery — worse yet, in the presence of a small child. When I wrote about this now-former judge’s situation originally, I tried to keep the focus on the situation as an example of the problems that plague our profession when it comes to substance abuse. Unfortunately, but unsurprisingly after living through a two-to-three-year-long pandemic, those problems continue in our profession at full pace. You can read the more recent article about the end of the Indiana judge’s judicial career here.