Litigation and Professional Responsibilities & Legal Education Practice Group Podcast
On May 19, 2016, the United States District Court for the Southern District of Texas entered a Memorandum Opinion and Order in which it found that lawyers from the United States Department of Justice violated their duty of candor in the course of their representation and imposed sanctions. The court initially required additional ethics training for all Justice Department attorneys practicing in 26 states for a period of five years. The Court concluded, in part, that “the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.” The Justice Department acknowledged that its attorneys made mistakes and misrepresentations to the court and opposing counsel, but contended that none were intentional, and agreed to some limited sanctions. Since then, the court has stayed its order.
What are the limits, if any, to Court sanctions for attorney conduct? Thomas H. Dupree Jr., who formerly served in the Department of Justice, and Richard Painter, whose experience includes service in the White House Counsel’s Office, discussed these issues on the podcast.
2015 National Lawyers Convention
- Mr. Thomas H. Dupree Jr., Partner, Gibson Dunn
- Prof. Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School
Many attorneys see a judgeship as the pinnacle of professional achievement in the legal world. It could be the visibility of judges, their unquestioned decision-making authority, the absence of clients, life tenure, or some other aspect of being a judge. Our panel of judges will discuss the realities of a career on the bench. The panelists will share their thoughts on topics as diverse as the role of the judiciary, judicial philosophy, stare decisis and precedent, opinions and dissents, the judicial appointment process, the state of the legal profession, and much more.
This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC.
Special Session: Life on the Bench
2:30 p.m. – 4:00 p.m.
- Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit
- Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
- Hon. Diarmuid F. O'Scannlain, U.S. Court of Appeals, Ninth Circuit
- Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit
- Hon. David Stras, Associate Justice, Supreme Court of Minnesota
- Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit
- Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
The Mayflower Hotel 2015 National Lawyers Convention
The Supreme Court has instructed in clear terms that the duty of the Federal prosecutor in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Yet the news pages are filled with examples of Federal prosecutorial overreach. In its term just ended, the Supreme Court reversed six of seven criminal convictions that reached it, several all involving some form of over criminalization that can lead to prosecutorial overreach. And large categories of prosecutorial overreach never reach the Supreme Court, from dozens of convictions of "insider trading" by non-insiders (now found not to be a crime by the Second Circuit); to civil forfeitures of property of legitimate small businesses never charged with a crime; to multi-billion dollar settlements of the thinnest of charges with large banks, pharmaceutical companies, and individuals that cannot take any risk of a criminal conviction; to what one jurist has described as an “epidemic of Brady violations abroad in the land."
The panel will explore whether prosecutorial overreach has become epidemic. It will also explore potential remedies ranging from reducing the number of crimes, to sentencing reform, plea bargain reform, civil forfeiture reform, and more. Finally, it will ask who should take action to control prosecutorial overreach? Should it be the state bars? Should the courts be more aggressive? Or, is the task primarily one for Congress? If so, what are the most promising avenues of reform?
Professional Responsibility: Prosecutors Run Amok?
11:00 a.m. – 12:30 p.m.
- Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
- Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation
- Hon. George J. Terwilliger III, Partner, McGuireWoods LLP
- Ms. Darpana M. Sheth, Constitutional Litigator, Institute for Justice
- Moderator: Hon. Keith R. Blackwell, Associate Justice, Supreme Court of Georgia
- Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP
The Mayflower Hotel Practice Groups Podcast
In her book, The Story: A Reporter's Journey, former New York Times reporter Judith Miller describes going to jail to protect her sources in the investigation of the outing of CIA agent Valerie Plame over a decade ago. Her book catalogs new information that raises questions about the investigation. Bestselling author Arthur Herman led our discussion with the author.
2014 National Lawyers Convention
- Judith Miller, Author, Senior Fellow, Hudson Institute
- Dr. Arthur L. Herman, Senior Fellow, Hudson Institute
Once upon a time, corporations, government departments, and other entities made their own decisions about how long to retain documents created or received in the course of business. Today, document retention policies can present difficult issues for the entities, for the lawyers who advise them, and for the courts that are called on to decide the consequences when documents are no longer available. Particularly in the electronic age, where computers die, people delete their emails, and backups are not always reliable, document retention cannot be counted on. What are an attorney’s obligations? Should a lawyer bringing suit write to the other side and warn that entity not to engage in normal document destruction and to back up particularly important data? Does the company being sued have to comply? These are some of the questions that the panel will address.
In-house lawyers may face particular difficulties. Does the lawyer represent only the institution, or does the lawyer also have obligations to the employees? Should the lawyer advise the employees to censor themselves in emails sent via the employer’s email system? Should employees be encouraged to communicate about work through their personal email instead? How does an in-house lawyer handle the conflicts between representing individuals who do not want to disclose discoverable emails for emails unrelated to ongoing litigation (perhaps because they made impolitic comments about their supervisors)?
Finally, the panel will discuss if there are special obligations for counsel representing government entities. Government records have a unique status. They document the conduct of public business and are necessary for transparency and, more formally, are subject to retention and preservation requirements. Should lawyers advise government clients that backups cannot be destroyed for years, contrary to current IRS policy? Should lawyers inform government employees that their personal emails, if discussing issues related to their work, may also be discoverable? How does the government’s duty of transparency to the public affect its disclosure obligations and the lawyer’s corresponding obligations to her client?
The Federalist Society's Professional Responsibility & Legal Education Practice Group presented this panel on "'The Dog Ate My Emails!': Document Retention Policies, Litigation Holds, and Legal Ethics on Saturday, November 15, during the 2014 National Lawyers Convention.
- Ms. Jamie Brown, Global eDiscovery Counsel, UBS AG, and former Associate General Counsel, Commodities Futures Trading Commission
- Mr. Daniel Epstein, Executive Director, Cause of Action
- Mr. Patrick Oot, Partner, Shook Hardy & Bacon L.L.P., and former Senior Special Counsel for Electronic Discovery Office of the General Counsel, U.S. Securities and Exchange Commission
- Mrs. Victoria A. Redgrave, Managing Partner, Redgrave LLP
- Ms. Julie Goldsmith Reiser, Partner, Cohen Milstein Sellers & Toll PLLC
- Moderator: Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit
- Introduction: Jack J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP; and Chairman, Professional Responsibility & Legal Education Practice Group