ADR class 2

time - waiting for the appellate process is not always feasible.

expedited resolution is not always appropriate for both parties.
identify the interests of the person who is reluctant to quick resolution.

when people spend more time fighting, they become more adversarial.
ephemeral reactions to the motions, discovery, etc makes parties get
even angrier at each other. there's name-calling and accusations, etc.
and then that's coupled with increasing legal fees, which makes people
feel even more upset and strapped.

what does it cost the litigant to go to court?
- cost of attorney time and fees
- cost of training junior associates
- high fees for partner's time
- time for discovery
- may be too expensive for middle class to litigate effectively
- how do you tell a client that they may be correct, but that the
cost to litigate will exceed the value of the injury?
- option: go to the AG or consumer affairs, if its some kind of consumer fraud
- option: "if this can't be resolved, we have to find a way to manage this"
- have to focus on the client's ability to pay!!

uncertainty of the result: many times people will invest in a litigation
and will think that at the end of the litigation, they will prevail --
but what if that doesn't happen? what if the person is not restored to their
original position? if they had realized they might lose, they might have
made different choices. additionally, many contracts have a
"prevailing party" clause, which means

example:
stiverson v. manhattan -- state housing agency interpreted statute in a certain way,
such that a rent-stabilized building can be handled as luxury-decontrolled, and
rented at fair market rate. no tenant had challenged the interpretation over 17 years.
court of appeals have dissented that the interpretation is contrary to the
plain meaning of the statute, even though there's 17 years of reliance on the wrong
interpretation. the devaluation is approx 4 bill. and investors in this building
include pension funds


conflicts of interests is a growing industry problem.

adversarial approach can have unintended ramifications.
good faith relationships can be poorly affected by adversarial process,
like relationships to your kids, employer/employee relationships,
business relationships like with suppliers,

"best attorney wins" -- perception management that getting the most
expensive/ best known lawyer will give a big advantage

expertise of the judge: should that influence arbitration or not?

adr allows you to hand-pick the judge, which allows you to build into
the arbitration agreement that there's a specific person that you want to
arbitrate the agreement. this is particularly used in labor agreements.
but you can be creative and put provisions for things like
- minimum connections
- expertise of both customer and management side
- knowledge of the current work environment
- agreement to stay late, work at certain hours
- ability to put people into a more comfortable frame of mind
** lack of confidentiality in the courts **
the only limit is what you can get the other side to agree to.

ADR: chapter 3 reading

a. negotiator style

g richard shell, bargaining for advantage: negotiation strategies for reasonable people.
exercise: "i will give a prize of 1k to each of the first 2 people who can pesouade the person sitting opp to get up, come aroudn the table and stand behind his or her chair." what's your response?
- avoidance: successful negotiation can happen by just not coming to the table to bargain
- compromise: each person agrees to share the gains equally between them.
- accommodation: you can inject yourself into a bargaining position
- competitive strategy:
- collaborative/ problem-solving: how can we both get the full value of what we want?

collaborative is often the hardest to implement. but are extremely important to complext negotiations.

personal bargaining styles stem from many inclinations and predispositions, and are influenced by ephemeral changes.

exercise: imagine you are approaching a traffic intersection and another car is nearing the interesction at the same time. what do you do?
- preparation
- exchange information
- proposition
- commitment to action

many people only feel prepared if they know what they want and what they'll settle for. but if we have few fallback positions, we will not be ready to make concessions if needed.... need to be prepared to look for creative solutions

seven keys to preparation:
- interests
- options
- alternatives
- legitimacy
- communication
- relationship
- commitment

"you can negotiate but you must do your research. come armed with info and you'll be rewarded."

c. approaches to negotation
1. adversarial
"reservation point" - the max amount that a buyer will pay (RP)
the RP is also the minimum amount the seller will accept.
the points inbetween are the bargaining zone
if the seller's RP is higher than the buyer's than there's no bargaining zone.
so knowing where the bargaining zone lies is the most critical info to the negotiator to process.

gen ex: class 1

assignments due asap -
* 3 goals
*

collaboration project:
- 2 meetings with prof
-

name + year + externship
why you came to law school +
what you want to get out of this particular externship placement +
how has this modified/changed/redefined the end goal over time?


immediate, future and end goals....

biz org class 3

best way to max shareholder profits is to take a communitarian approach: consider the needs of the community.

dodge v. ford - what ford says on the stand makes good biz sense: most leaders probably believe that the best way to max growth is to take care of the employees, creditors, etc. ford said i don't care about shareholders -- which was the problem because the purpose of the corp is to max shareholder profits.

but from wrigley, we know that the executives don't have to be tunneled visioned. they should also consider non-shareholder interests when it also does what's best for shareholders (communitarian).

there is a direct link to helping the community and the shareholder.

see p. 279:
if shelensky was unhappy with wrigley operations, why didn't he just sell his shares? there are several aspects which define corps, and one fund characteristic is that interests are fully transferable and you can sell if unhappy

the point of a corp is not just to make money for shareholders but to *maximize* the growth. the shareholder won't want to sell because any money made is going to reflect lowered value of the shares, when the company can be more profitable and shelensky could sell for more.

could shelensky have prevailed? the court wanted him to be more specific in his complaint (the court calls his assertion "a mere conclusion") and to have given more concrete proof that nighttime games would have created more profit for the shareholders.

suppose you represent shelensky and called wrigley as a witness. what would you ask him/ what strategy would you adopt in questioning? other baseball companies have played night games and installed lights and the shareholders have made much more money, where mr. wrigley, the majority controlling shareholder at 80%, has denied the installation.

do we look at objective or subjective reality? the ford court looked at subjective state of mind of henry ford. the shelensky court instead looks at the objective operations in the way that the company might disturb the neighbors and the potential effect this could have on shareholders.

see p. 278, which illustrates the approach of objective reality and the controlling shareholder's state of mind.

when does a corporation exist?


how do we pierce the corporate veil?

what's the reason that barrett is not liable? when a promoter contracts with a 3d party on behalf of a corp not yet formed, who is liable? the corp wasn't de jure

walkowsky and sea-land were corporations. they were de jure (organized under laws of a jurisdiction and able to operate as a corporate entity) but they were organized for non-corporate intentions.

if the promoter forms the corporation later, can the corporation become a party to a contract? yes

can the initial agent avoid liability?
if the promoter later forms the corp, can s/he avoid liability? no
absent an agreement to the contrary, an agent for a not yet formed corp is liable and can avoid liability only if the other party to the contract agrees.

who is liable if the corp is never formed? what is the issue in so-gulf marine? the agent/promoter is liable if the corp is never formed.

agency principle. the court estops camcraft from saying that it can't do business with so-gulf because the fact that so-gulf's legal status (the fact it isn't a corp) doesn't effect camcraft's legal status.

the court has two doctrines to mitigate the potential liability:
1. corp by estoppel, where the court will treat a firm as though it was a corp because the parties dealing with the firm (1) thought it was a corp all along and (2) one party will earn a windfall if the firm is not treated as a corp.
2. de facto corp doctrine: instead of looking at the postiion of the party dealing with the corp, the court looks at the position of the promoters/organizers. the court may treat a firm not properly incorp as though it were a de jure corp if the organizers (1) in good faith tried to incorp, (2) had a legal right to inc and (3) acted as a corp.

did barrett make a good faith effort to incorporate?

walcovsky v. carlton.

commercial arbitration class 2

federal arbitration statute (see appendix 2)

if there's a written agreement, the court can only refuse to enforce
if it's on the same grounds that render any contract invalid.

courts decide whether the language falls within the scope of the arbitration --

arbitability means 2 things:
1. whether a dispute falls within the description of disputes covered
    by the arbitration clause
2.

NYCPL s. 7501 see appendix 1
the court isn't supposed to consider the meritability of the dispute.
meaning, even stupid claims are supposed to be handled by the arbitrators
not the court.

what if a party is recalcitrant about an arbitration?
a party to the contract can file a court action, but the other says that it
should go to arbitration.

"where a party is aggrieved by failure to arbitrate, the party seeking
arbitration can get the court to stay a court action and enter an order that
the case has to go to arbitration."  -- without this kind of provision,
treating a contractual arbitration agreement wouldn't have much sway....

if you have an award, it's not worth anything if it's not voluntarily
complied with or its turned into a judgment. both state and fed
have confirmation procedures:

see section 9 - 11 of federal arb stat, which deal with how to grant the
award or to deny the award under stat basis (award conferred by
corruption, fraud, misconduct, unfair hearing, excess of arbitrator's powers)

but again, there's nothing to suggest that errors of fundamental law or fact
create a basis to deny an award. there are limited public policy reasons to
refuse to confirm that we will explore later (for example sending a heroin
addict back to work at a power plant), and amicus disregard.

but part of the ouster concept and reluctance to arbitration was the idea that
people going to arbitration wouldn't have the protection of the appellate level.
but if parties are submitting to arbitration, either by honoring the clause or
by agreeing to arbitrate post-dispute, once the award was entered, it was
good and courts would rarely interfere with the award. the only time courts
would revoke would be times where parties would complain. parties can also
always settle a dispute, and courts do not get into the fairness of settlements or
consideration. history of these policies is pretty choppy.

these statutes were created to deal with merchantile arbitration. but whether the terms
of the enactments of 1925 were sound or not, congress was not thinking of arbitrating
securities or civil rights.

additionally, the statute talks about interstate commerce -- in 1925, congress
meant boats, trains, and shipments from state to state. nowadays, you don't
have to intend interstate commerce or for activity to take place in multiple
jurisdictions. this clause has huge impact, because you can arbitrate ginormous
claims!

when you go to arbitration you give up right to trial by jury. juries have
always been waivable by both parties. but some people argue that it is a
knowing act to waive the right to jury, and the common place use of
arbitration clauses creates a question of what does "knowing waiver" means?
why should we expect that people understand what arbitration is?

under choice of law principles, why not arbitrability? in a law suit involving
people from all over and a court different from where the court sits, why doesn't
that change to have the court invariably turn to its own rules to govern procedure?

procedure is at least somewhat linked with remedies -- therefore, what remedies
are available to a wronged party? early thinkers talked about arbitration
as a remedy (keeping in mind, one for which there was no jury).
because of this, arbitration didn't run into constitutional obstacles
because state constitutions would set up types of jurisdictions, and if arbitration
had been seen as a type of court, then it would have been difficult for the legislature
to establish it by statute.

are arbitrators required to apply the law?

proRo class 3

wednesday afternoon discussion sessions TBA.

class 3 overview:

who is the client?

how is the attorney-client privilege formed?

perez v. kirk and carrigan

attorney-client privilege. 

see post "proRo problem"
- not rule bound but est by common law
- can be vague whether the relationship is est
- general standards (see p. 25 of textbook)
     "person manifests to att intent for rep"
     "att knows/ reasonably should know person is relying on their rep"

The "C"s of confidentiality in attorney-client privilege: Client Communicates Confidentially with Counsel to obtain Counsel.

don't have to see the person face to face even, but can be probative.
however, there's no singular dispositive thing except, perhaps,
the REASONABLE EXPECTATION OF THE CLIENT
- esp if the person has given the att privileged confidential info

before giving opinions, the att must consider "would this person
reasonably consider this legal advice?" if so: court may say
"att-client relationship!"

while no single factor is dispositive,
the reasonable expectations of the client determine whether
the att-cli relationship has been formed."

confidentiality
model rules rule 1.6 
see comment 4
discussion of the 2004 updates to rule 1.6

you can see within the text of the rule 2 exceptions to the
baseline obligations:
1. client's informed consent to representation
2. implicit consent to representation

informed consent is defined for us at MPRC 1.0(e) but is a recurring concept.

implicit consent is where consent to reveal/disclose is implied.
- specific information that att has been given but hasn't turned over
- work done in the service of the client

what can you say/not say to others in respect to the work done for a client?
under just MPRC 1.06, you can say nothing.
with respect to comment 4, you can say things so long as the information
will not be related back to/identify the client. comment 4 makes it OK to
reveal information in hypothetical form for professional purposes. but
doesn't allow you to spill the beans about your client with your buddies...

bottom line: most lawyers interpret duty of confidentiality to not prohibit
the discussion of work entirely but to inhibit disclosures that may be linked
to any particular individual which could be traced back to a client.

explicit exceptions under 1.6 (b):
1. prevent reasonably certain death or substantial bodily harm
2. prevent the client from commiting a crime or fraud that is reasonably certain
    to result and substantial injury to someone's financial interest or property
    and in furtherance of which the client has used the lawyer's services
3. to prevent/mitigate substantial injury to property or financial injury to person
    that has resulted or will result from client's past commission of a crime or
    fraud and in furtherance of which the client has used the lawyer's services
4. to secure compliance with rules
5. to est. defense for lawyer in dispute between lawyer and client
6. to comply with another law or court order

* past criminal conduct: general consensus is lawyers can't reveal
* past criminal activity of their clients.  compare 1.6(b)(1) through (3).
1.6(b)(1) and (2) prevent future crimes
1.6(b)(3) deals with completed crimes
1.6(b)(3) allows the lawyer to reveal if the crime will result in substantial
      physical or financial injury or death
if the criminal act is past and the client hires the lawyer to hire him/her
     with respect to the past fraudulent act, 1.6(b)(3) is inapplicable.
     instead see comment 8.

hypo.

attorney learns that client intends to commit arson to former boss. 

can att disclose?

yes. why and under what rule?
can invoke 1.6(b)(1) if you show someone was likely to be hurt
can invoke 1.6(b)(2) if the cli was using the att to commit this crime...
    let's say the att was engaged for an age discrim suit. that connection
    would NOT allow the att to invoke because the cli didn't use the service
    to commit the crime.

what if the att gave the cli advice based on a hypo "i'm going to burn down

    my boss' building. what would happen if i do?" can he disclose?
    

hypo.

att unwittingly helps cli create and file falsified docs. can he disclose?
yes.
     now, rule 1.6(b)(2) does apply because the att's role
     directly impacts the crime or fraud committed.

hypo. 

att is approached to represent cli about fraudulent claims to SEC. 

over time att discovers that cli did make the fraudulent claims.

can he reveal?

no. under comment 8 of 1.6(b)(3), the att was approached by the client
for that charge and for (b)(3) to apply, cli must have approached the att
to advance the crime, not just to represent after the fact.

the harm resulting from a fraud is ongoing and difficult to pin down
when it occurs. the critical legal inquiry to decide if (b)(3) applies is
"is the commission of the fraud itself past?"

but when fraud can be ongoing, the att must be able to identify
components of the fraud which were ongoing and reliant on
representation and services of the att. it's very difficult to pin
down when a financial harm will occur, if it all.

all exceptions to duty of confidentiality are permissive, including (b)(1),
except in states which make (b)(1) mandatory. there is no requirement
to reveal under MPRC.

see "proRo class 3: alton logan"

hypo. 

11 yr old goes missing on way to bible study. the father and friends

distribute pictures of the child to the community but no one has seen 

the child. the cops arrest a man for a botched kidnapping of a 12 yo 

and suspect the man also killed the 11 yo. the defendant confesses 

that he abducted the 11yo and buried her in a shallow grave, draws 

a crude map. public defender is aware the confession can be attacked 

collaterally and defendant is convicted. 

apply rule 1.6 - could the att have advised the client to disclose, 

or if he knew the location could he have disclosed?

proRo: class 3 - alton logan and model rules amendments

alton logan

from the ABA:
Alton Logan has been in prison 26 years for
the shotgun murder of Lloyd Wickliffe, a
crime [committed by Andrew Wilson].
Wilson’s lawyers faced a classic ethical dilemma:
What may a lawyer do when a client admits
to a crime for which another has been charged?

Wilson’s lawyers concluded that client confidentiality
bound them to silence, but they obtained their client’s
consent to reveal the information after his death.
Wilson’s lawyers also drew up an affidavit that confirmed
that they “obtained information through privileged
sources that a man named Alton Logan who
was charged in the fatal shooting of Lloyd Wickliffe
. . . is in fact not responsible for that shooting.” They
placed the affidavit in a sealed envelope in a metal
box in 1982, believing that revelation at a later date
would be more credible if supported by the affidavit.
They released the affidavit after their client’s death [in 2008].

The ABA is considering a draft proposal to amend
Rule 1.6 of the Model Rules of Professional Conduct
to allow disclosure in such situations. In this column
we review the draft proposal, and discuss whether
there should be a new exception to Model Rule 1.6’s
duty of client confidentiality to prevent the wrongful
incarceration of another. The purpose of this column
is both to analyze the issue and to encourage discussion
and comments from readers.

Draft Proposal
Although newly amended Rule 3.8 clarifies the
obligations of prosecutors regarding wrongful conviction,
nothing has yet been done either to require
or allow disclosure of confidential information by
defense counsel to prevent wrongful incarceration.
In response to this dilemma, Criminal Justice Section
Ethics, Gideon & Professionalism Committee
cochairs Bruce Green and Ellen Yaroshevsky have
drafted the following proposal to amend Rule 1.6:

(c) A lawyer may reveal information relating
to the representation of a deceased client to the
extent the lawyer reasonably believes necessary
to prevent or rectify the wrongful conviction
of another.

The draft proposes amending Comment [15] to
Model Rule 1.6 as follows:
Paragraph (c) recognizes the important societal
interest in preventing and rectifying wrongful
convictions, including both convictions of
factually innocent individuals and convictions
resulting from procedural improprieties. The
interests underlying the confidentiality obligation
are usually paramount in the case of living
clients because clients will not be as forthcoming
if there is a risk that their confidences will
be disclosed during their lifetimes. However,
the societal interest in disclosure may be paramount
when the client is deceased, particularly
when the client’s reputation and estate will not
be prejudiced by disclosure. In exercising discretion
under Paragraph (c), a lawyer should
consider the prior wishes of the deceased client
to the extent they are known, the likelihood
that a wrongful conviction will occur and can
be prevented or that a wrongful conviction
occurred and can be rectified by disclosure,
the extent of the ongoing harm caused by the
wrongful conviction, and the extent to which
disclosure will prejudice interests important
to the deceased client, including the deceased
client’s reputation and the financial interests of
the deceased client’s estate.

In evaluating the recommendation, it is important
to note some of its features and limitations:
First, disclosure under the proposal would be discretionary.
Second, the proposed amendment restrains the
lawyer’s discretion by limiting disclosure to situations
when the client is deceased. Further, the
Comment indicates that in exercising discretion the
lawyer should consider the prior wishes of the deceased
client and the extent to which disclosure will
prejudice interests important to the deceased client,
including the deceased client’s reputation and the financial
interests of the deceased client’s estate.

The preconditions for disclosure appear to narrow the
proposed exception to confidentiality so much that
the exception could rarely be used, especially when
one considers that disclosure would be discouraged
even when there is only reputational harm to a deceased
client.

Finally, amending the ethical confidentiality rule
in a jurisdiction does not resolve evidentiary issues
that could bar the information being used in court
proceedings. As discussed in the following section,
attorney-client privilege has been used in several
jurisdictions to prevent lawyers from revealing information
that could prevent the wrongful incarceration
of another. A confidentiality exception would
allow revelation to the prosecution, the press, and
lawyers representing the person the information
exonerates. Privilege becomes an issue when the
lawyer seeks to testify in court about what the lawyer
knows that may exonerate the accused. In addition,
limitations on the use of alternate perpetrator
evidence and hearsay would usually exclude this
type of testimony.

Massachusetts has already amended its ethics
rules to provide that “[a] lawyer may reveal . . . such
information . . . to prevent the wrongful execution
or incarceration of another.” (Mass. R. Prof’l Conduct
1.6(b)(1).) Comment [9A] explains that this
exception to confidentiality permits “a lawyer to
reveal confidential information in the specific situation
where such information discloses that an innocent
person has been convicted of a crime and has
been sentenced to imprisonment or execution.” The
Comment’s explanation that the exception applies
specifically when “an innocent person has been convicted
of a crime and has been sentenced to imprisonment
or execution” may be viewed as an example
of when the exception applies or as a limitation on
using the exception. Rather than clarifying the exception,
the Comment appears to create an ambiguity
in determining when the exception applies. We
could find no reported instances of a lawyer making
disclosure under this rule.

Attorney-Client Privilege
There are several well-documented examples of
confidential information being offered to exonerate
someone accused of a crime. In State v. Macumber,
544 P.2d 1084 (Ariz. 1976), William Macumber was
charged with murder. At Macumber’s trial, two attorneys
attempted to testify that their deceased client
had confessed to the crime. The trial court refused
to admit the evidence reasoning that attorney-client
privilege survived the death of a client and that disclosure
could only be made with the consent of the
client or someone authorized by law to speak for the
client. On appeal, the Arizona Supreme Court reversed
on other grounds, but upheld the trial court’s
decision to exclude the confession, holding that in
the absence of consent from the individual holding
the privilege, the privilege could be asserted by the
trial court itself to prevent disclosure. (Id. at 1086.)
Macumber illustrates the distinction between the
legal ethics rule of client confidentiality and the evidentiary
rule of attorney-client privilege. Both the
trial court and the Arizona Supreme Court refused to
permit the testimony from the lawyers on attorneyclient
privilege grounds even though the lawyers
had obtained an informal bar ethics opinion stating
that they were ethically permitted to reveal the
confidential information. (Id. at 1097 (Holohan, J.,
concurring).)

Other courts have also relied on attorney-client
privilege to prevent lawyers from testifying about
client statements exonerating someone charged with
a crime. (See, e.g., State v. Doster, 284 S.E.2d 218,
220 (S.C. 1981) (applying attorney-client privilege
to prevent lawyer from testifying about deceased
client’s statements that may have exonerated defendant);
State v. Valdez, 618 P.2d 1234, 1236 (N.M.
1980) (holding attorney-client privilege prevented
lawyer from testifying that a former client confessed
to robbery).)
In Morales v. Portunondo, 154 F.Supp.2d 706
(S.D.N.Y. 2001), though, the court permitted a lawyer
to disclose that his deceased client had confessed
to a murder for which another man had been convicted.
The court found the information covered
by attorney-client privilege, but ruled that in a habeas
action due process required admission of the
evidence to guarantee fundamental fairness to the
defendant. (Id. at 730-31.) In reaching its decision,
the Morales court relied on Chambers v. Mississippi,
410 U.S. 284, 302-03 (1973), which used a due process
analysis in holding that “the hearsay rule may
not be applied mechanistically to defeat the ends of
justice” to exclude statements of another admitting
to a crime for which the defendant is on trial.
These cases demonstrate that any change in a
state’s ethics rules to create an exception to confidentiality
to prevent wrongful incarceration needs to
be supplemented by changes in the law of attorneyattorney
client privilege if the confidential information
obtained from a client is to be used in a court
proceeding. Still, an exception to client confidentiality
would permit a lawyer to reveal the information
to the accused’s defense counsel, the prosecutor, and
the press. Such revelations might, in turn, lead to
other admissible evidence or information that could
prevent a wrongful conviction, incarceration, or
execution.
 
Should There Be an Exception?
Let’s consider some of the pros and cons of such a
proposal.
Against the exception. Confidentiality, a key aspect
of the attorney-client relationship, is essential
to building trust between client and lawyer. Confidentiality
encourages lawyers to seek and clients to
provide full information about the representation.
Confidentiality, it is argued, serves both clients and
society since open communication enables the lawyer
to represent the client effectively and gives the
lawyer the opportunity to counsel the client against
wrongful behavior. Exceptions to confidentiality
arguably erode both lawyer and client incentives to
seek and provide information, and thus threaten to
undermine the quality of legal representation and
the good it provides to society.

A separate argument against the exception that is
the focus of this column is that such an exception
is unlikely in reality to provide much benefit to the
wrongfully accused or convicted.
 If a lawyer were to reveal a deceased client’s confession
to a crime for which another had been convicted, there
are a number of serious evidentiary barriers to the
admission of such testimony in a court proceeding,
including attorney-client privilege, the hearsay rule,
and the alternate perpetrator doctrine. 

• The confession was not made under oath and there was no opportunity either for cross-examination or to observe the client’s demeanor. 
• If the confession was made to a lawyer in the belief that it was protected by confidentialityand attorney-client privilege, it would also not be an admission against interest. 

In short, such a confession may carry little weight
even if it were not barred by evidence law.

For the exception. One argument for such an
exception is that ethical confidentiality rules have
always recognized exceptions. Is one more, rather
narrow, exception likely to have a significant marginal
impact on the flow of information from client
to lawyer or the resulting quality of representation?
Some currently recognized exceptions, such as those
pertaining to future crime or harm, seem much more
likely to be triggered and thus more likely to impede
the full and frank communication confidentiality is
designed to facilitate than a wrongful conviction
exception.

In response to the argument that this exception
is unlikely to produce much benefit for someone
wrongly charged or convicted due to various evidentiary
barriers to admitting the client’s confession in
court, one can argue that revelation of the confession
may produce benefits other than its use as evidence
in a court proceeding. The revelation might help a
wrongfully charged or convicted person attract public
support, lead to other admissible evidence, or
simply prompt the prosecution to reexamine a case.
Perhaps the most appealing argument for such an
exception is that it helps address the need to remedy
the wrongful convictions that have attained
such prominence in today’s legal and popular culture.
These DNA exonerations illustrate the need for
more safeguards to ensure that the innocent are not
convicted and incarcerated. One such response is
the recent amendment to Model Rule 3.8 addressing
a prosecutor’s post-conviction obligations of
disclosure and investigation. An additional response
aimed at defense counsel is a wrongful incarceration
exception. Failure to recognize such an exception
is likely to attract public attention and undermine
public confidence both in lawyers and our criminal
justice system.

Finally, recognition of such an exception is consistent
with a recent trend to ease confidentiality
restrictions when doing so allows lawyers to serve
an important public purpose. The current version of
Mode Rule 1.6, for example, recognizes more exceptions
than did the original version of Model Rule
1.6. Many states have enacted exceptions more generous
than those currently found in the Model Rules.
Another example is Model Rule 1.13(c)’s “reporting
out” exception to confidentiality in organizational
representation the ABA adopted in response to the
Enron scandal and other corporate wrongdoing. This
trend expands a lawyer’s duty to act cooperatively in
preventing and remedying wrongdoing, emphasizing
the lawyer’s role as an officer of the court rather
than the lawyer’s role as a zealous advocate of the
client.
 
Conclusion
The issue of wrongful conviction is a serious one. Studies
of wrongful conviction reveal that both prosecutors
and defense counsel often contribute to wrongful
convictions. It would seem appropriate then, to look to
both prosecutors and defense counsel to help remedy
the problem. The current draft, very narrowly drawn
and discretionary rather than mandatory, seems unobjectionable.
Our view is that a more expansive exception
may possibly be justified, without the death and
reputational harm limits found in the current proposal.
If an exception to client confidentiality to prevent
or remedy wrongful convictions is to be enacted, a
robust exchange of views and discussion of the arguments
for or against it is warranted.

To that end,
we urge you to share your views with the cochairs
of the Ethics, Gideon & Professionalism Committee
of the Criminal Justice Section. Professors Bruce
Green (bgreen@law.fordham.edu) and Ellen Yaroshevsky
(yaroshef@yu.edu).

proRo class 2

n.b. -- "fluff" will be tested.

durkheim -- occupations like law must have a collective sense of ethics

what does it mean to call the law a profession?
- specialized training
- higher standardization of competence
- trust and reliability. because of this, the professional self-interests
     must be balanced with the client's interests (self-interests must
     be less than the client's or this level of trust doesn't work)
- self-regulatory quality to professionalism

tocqueville. 
an invisible break on democracy.
american democracy had successfully made democracy "safe for use"
     US was comparatively wealthy and no bloddy continuing warfare
shortage of guarantees against tyranny -- when a person suffers in US,
     can't turn to public opinion, legis., executive branch, police power,
     jury, even judges.... tocqueville finds problems with the iniquitous
     nature which is present in the US legal system which is the check
     against iniquity.

tocqueville writes (p. 2, 3):

"Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude....

"Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment."


disputes by judiciary: this is a naturally anti-democratic way of proceeding, no? the courts are given deference and their word is bond.

going back to footnote 4, though -- we see that this is a measure of checks and balances

proRo: problem

You are a solo practitioner in New York. You mainly represent individual clients in personal injury, domestic relations, and estate matters. Some of your friend have found that a great way to get new clients is to visit Internet chat rooms and have casual conversations with people who need legal advice. You have started visiting chat rooms also, partly in the hopes of getting new clients and partly because you like helping people in need (public good, and all that).

Two or three evenings a week, you sign in to one of several Internet chat rooms. Your screen name is "GoPats11" (you are a New England Patriots fan and think that Rex Ryan may well be the devil). Sometimes you visit the Accident and Injuries Chat Room, where accident victims share their stories and grievances. This chat room gives participants the option to share their e-mail addresses with other participants. You have always disclosed your e-mail address.

Two months ago, the chat room added a "legal hour" on Thursday evenings to enable accident victims to chat with lawyers. To reach the screen for the legal hour, a user must first click through a screen on which the sponsor of the chat room has posted the following notice:

"This chat room is for informational purposes only. Participating in this chat room does not establish an attorney-client relationship. This is a free service. You do not need to pay any subscription or make payments of any kind to participate in this chat room. If you agree to these terms, click the 'I agree' button. You will not be able to proceed to the legal hour screen unless you click the 'I agree' button."

About a month ago, you started logging on to the legal hour as a lawyer. Each Thursday night, you and the two other lawyers in the chat room were deluged with legal questions. Most of the questions were very general in nature, and you and the two other lawyers answered them in general terms. However, a few weeks ago one question (from "EyesOnFire," who did not disclose his or her e-mail address) was quite specific:

EyesOnFire: "I live in Queens. Five years ago, I bought a can of Slickster hair spray. When I pressed the button on top, the pressurized can exploded. The spray and some of the metal spewed all over the place, some at my face. Something got in both of my eyes. I went to the doctor and he rinsed my eyes and gave me some treatments. I didn't need to go into the hospital, and the treatments ended within six months. My health insurance covered my medical expenses. A year later, I thought the whole thing was over, but in the last year, my sight has been failing. The doctors think that although they got out all the metal, something in the chemicals must have caused slow, long-term deterioration in both eyes. They think I will go blind. Can I sue someone?"

You did not want to give EyesOnFire any false hope, so you wrote back:

GoPats11: "EyesOnFire, I am sorry to say that you won't be able to sue anyone. In New York, the statute of limitations for tort cases is only three years. Since this accident took place five years ago and you knew then that you had been injured, you would have had to bring any lawsuit several years ago. Unfortunately, the law imposes these sometimes artificial barriers to a fair recovery. I wish that I could be more encouraging."

The week after you had this conversation, you stumbled across an article that explained that California has an unusually long statute of limitations for products liability cases. Therefore, if EyesOnFire's hairspray was manufactured in California, and if the SOL applied to a suit against the manufacturer regardless of where the injury occurred, EyesOnFire might still have a viable claim. EyesOnFire has not logged into the chat room since that night, so you haven't been able to correct or clarify the information you provided.

Questions:

1. Are you in potential trouble?
2. Should you be at risk of liability for your comments in the chat room? If so, is this one of those 'no good deed goes unpunished' situations?

IP class 1

what is property?
a system of rights and duties among people with respect to physical things

land, chattel.... whales

but outside the realm of physical things, what are those rights and duties?

skills, talents, abilities, thoughts, ideas, processes

interconnecting concepts between physical things and broad ideas


why apply property-like rules to non-physical things?
- title prevents disputes: how does giving property rights avoid disputes?
- encourage economic development
- freeriding: how can property rights can avoid this? the right to exclude
- trust and reliance
- endowment effect/ psychological effect

* moral arguments to IP
john locke - treatises on gov't
 every man has a porperty in his own person.... the labour of his body and the work of his hadns, we may say, are properly his." if i have a right to myself as a person, i have a right to my work and labor, my physical person (state of nature, in which everything is owned by all but me because i belong to me. my work creates exclusion, and my exclusion gives moral value to the physical and non-physical communal things that i work upon...)

*"this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others."

* personhood arguments: romanticized view -- like goethe's werther... personhood that the individual's struggle becomes fungible and has value

peggy radin, property and the personhood
 - to achieve proper self-development to be a person - an individual needs some control over resources in the external environment... the person becomes a real self only by engaging in a property relationship with something external. such a relationship is the goal if the person.

- one may gauge the strength or significance of someone's relationship with an object by the kind of pain that would be occasioned by its loss... not all object-loss is equally important. some objects may approach the fungible end of the continuum so that the justification for protecting them as specially related to the persons disappears... a few objects may be so close to the personal end of the continuum that no compensation could be just."

our personhood would be a good reason to create/enforce rights. but the interests vary across the scope of things. and varies across the scope of people.

* utilitarian/economic efficiency arguments
thomas jefferson to issac mcpherson letter 

"if nature has made any one thing less susceptible than all others of exclusive property, 

it is the action of the thinking power called an idea, which an individual may 

exclusively possess as long as he keeps it to himself; but the moment it is divulged, 

it forces itself into
the possession of every one, and the receiver cannot dispossess
himself of it.  Its peculiar character, too, is that no one possesses
the less, because every other possesses the whole of it."

"Inventions then cannot, in nature, be a subject of property.  Society
may give an exclusive right to the profits arising from them, as an
encouragement to men to pursue ideas which may produce utility, but
this may or may not be done, according to the will and convenience of
the society, without claim or complaint from any body... other nations have thought
that these monopolies produce more embarrassment than advantage to
society; and it may be observed that the nations which refuse
monopolies of invention, are as fruitful as England in new and useful
devices."

even though an idea, by its very nature, once devuldged can't be excluded, we'll pretend that it is and that if someone barges in on your idea, you have a right against them... jefferson says "no way," based on locke. does the emotional investment in your idea give you a right to it? should it?

n.b. -- this letter has a big influence on the const. art. I s. 8
there are two paragraphs.
- to regulate commerce with foreign nations, and among the several states, and withthe indian tribes... (and)
- to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries...
this is the util arguement to IP: it's like taking something that is


the trade mark cases:
"the ordinary trade-mark has no necessary relation to invention or discovery... it is often the result of accident rather than design.. but in neither case does it depend upon novelty, invention, discovery, or any work of the brain. it requires no fancy or imagination, no genius, no laborious thought. it is simply founded on priority of appropriation."

the market for lemons by george akerlof
the seller should put his reputation on the line... that's essentially what a trademark does, puts a sign on your product that says "you can trust me and if something happens you know who to blame"

alternatives to property rights
if not following intellectual property, how else might we ensure that we have an adequate level of innovation in our society? give a salary upfront, prizes, support each other as a community... the problem with this is that the government or private parties get to control the value of something, instead of the market valuating something


how else might we ensure the integrity of the information in our markets?

how else might we promote the self-development of personhood through engagement with ideas?

how else might we satisfy the moral claims of intellectual labor?  

recap:
philo grounds for IP
moral rights - locke
personhood - radin

monopoly itself can be a hinderance to the exchange of ideas

trademarks aren't the same as copyrights and patents.
the justification isn't creating and protecting, but instead
for giving an incentive to create high quality products
with the understanding that they get the benefit of the
trademark because it identifies their quality and gives
consumers information. market integrity lowers search
costs, while improving quality.

alternatives to IP rights such as prizes, acknowledgement,
etc. in our country, propertizing intellectual products is how
we determine to best protect them.

four categories of doctrines of the course:
trade secrets
patents
copyrights
trademarks

biz org class 2

types of business organizations
- sole proprietorship
risky because you are liable personally beyond your investment
in the business for the torts and contracts

- General Partnership
 formed anytime 2+ people come together to share profit and control.
that's all that's needed.
the partners are personally liable for the torts and contracts of the partnership.
each partner has the full power to bind the other partners.

- Limited Partnership
has two classes of partners -- limited partners and general partners.
limited partnerships allow some investors to enjoy limited liability
     as limited partners.
must file a charter in every state in which the partnership plans to operate.
general partners manage the business and affairs of the partnership
     (and therefore it makes sense that they have the imposition of higher liability).
     partners are generally limited in selling their interests.

- LLC (end of the semester)
n.b: S-corps have been primarily usurped with LLCs
     so we're not going to discuss them much.
the formation is similar to a corp.
LLC will only exist after the sec of state files.
stakeholders are called "members"
     and each member has the right to participate in the management
     but enjoy limited liability.

- corporations (where we'll spend most of our time)
large corps (500+ investors, $1mm+ assets)
small corps (less than the above)
public corps: the issuance and creation of shares in the corp
     which are sold to the public is what makes the company "public".
the interests are held by "the public" and so the company
     must be registered under the federal securities laws
private corps: often the shareholders of a closely held corp
     are also managers, partners, board, officers, etc

remember, corps can be defined by the structure of  
     officers, investors and shareholders.
     in large corps, this is often separate. in small corps, these rules can overlap.

50% of corps are inc'd in DE, and 63% of fortune 500 inc's are DE chartered.


how to incorporate.
must fill out the charter for a corporate form.
this registration allows the company to raise capital for the business
     easily because the shareholders can be offered freedom from liability.

the difference between LLC and Corps
- IRS ruled that business that have more than two of the following
     four corp attributes it will be taxed as a corp:
     1. limited liability (basically is a given cause you filed an LLC);
     2. free transferability of interest;
     3. continuity of life (death doesn't dissolve the company);
     4. cent. management (a board of managers)

reviewing "the corporation"
"corporations are required by law to put the interests
of shareholders before everything else - even the public good"
is this true?
which of the cases deal with this point? Dodge v. Ford
as a practical matter, can a company operate this way?
why did AP Smith win and Ford lose on the dividends issue?
     will be OK so long as the benefit to the corp is made clear
     can't be a pet charity
     must be a reasonable amount
were the instructions to Ford that he couldn't issue the special dividends 
     without the regular a holding by the court that the public good 
     isn't primary?
     the construction of the plant is consistent with Wrigley and AP Smith,
     but the dividends issue isn't consistent.

the dominant view of corp is to look at them as solely money-making,
     shareholder primacy machines. another way of seeing them though
     is to think of what's in the best long-term interest of both shareholders
     and public good as it relates to it (distinction between short and long
     term profitability). charitable donations can be good public relations.
     charitable donations to a private school influences future employees
     for the company.

why do we want corps to donate to charity?
a more stable and equalized society benefits the corp

the benefits to the corp can even be very tenuous,
    and that's usually arguments of AP Smith commentators.

when is it not a good idea for corps to not donate to charity?
     when its not an interest that shareholders support.
     like this target donation.

corporate governance.
Dodge v. Ford: ford doubled wages because he needed people
     to show up to the assembly line, which was monotonous
     and difficult work. this was in the best interest of shareholders.
     this is the seminal case to shareholder dividend maximization.
     courts usually defer to the corporate officer/decision makers for
     the expertise in the business of the shares.

shlensky v. wrigley - S relied on Dodge and said that the court
shouldn't consider the public good over the good of the company. but this didn't work because - even though wrigley didn't seem to care about the impact on the team - S didn't show how the conclusion would make the cubs company more profitable! here, S should have done more to prove the point

see p. 279 and then prob 1 on p. 280

ADR class 1

scott e. mollen

sec:(212) 498-6573

office: (212) 592-1505

2 park ave 22nd fl 10016

smollen@herrick.com

grade: paper, arbitration exercises, and class participation. CP and attendance (plus coming to class on time) are very important. 

*** class participation will be huge because mollen definitely does "rough justice" ***

in lieu of office hours, let profs secretary know. is happy to do tele conference, email, or prob face to face at his office. 

final paper guidelines:

1. check the topic with prof. 

2. must have an interview

3. if using for writing requirement, must be a 30 page paper.

topic proposal is due 9/21/10.

paper is due before 1st exam.

to get paper back, include a SASE. 

obstacles and advantages to ADR:
- mediator can be more educated and expert in the field
- social/ psychological benefits
- alternative procedural rules, and less rigid rules
     from the court system
- confidentiality
- clients may be more satisfied with the results
     and more likely to follow the judgment
- don't have to deal with the instability of the jury
- save costs
- save time: client needs may be immediate, and
     the issue may dissipate on the time line of the docket.
- ability to resolve dispute without destroying
     the fundamental relationship between the parties
- avoid establishing precedent/ maintaining flexibility
- alternative, equitable remedies for addressing injuries
- less adversarial nature (can be win-win)
- "custom design" for judgments. in ADR, the parties own the process. you can't do that in the courts. 

n.b. - you can't have binding mediation. you can have binding arbitration.

how long does litigation take? as long as it takes.

why does litigation take so long?

reasons:
- discovery and investigation. state and fed rules say that
     you as the lawyer/ party may not plead until you've done
     the research to make it well founded. this takes lots of time,
     conducting interviews, reviewing and analyzing files and
     correspondence and documents... then
- other party will need time to do the same once served. then
- once the other party has answered, the answer must be
     analyzed and investigated.... then
- an answer to the opposition's motion must be prepared and sent
- the opposition will do a response to the motions you sent
- all this briefing can take at least months...
     and there's still not even an answer yet.
- then, the workloads vary from court to court.
- and even once the motions are on the calendar, there's changes....
- once a motion is made and appears in court,
     you then must wait up to 60 days (or more) for opinion
- so months are used and there's still no answer...
- when a decision finally comes, then the losing party may
     re argue the motion.

n.b. -- don't ever assume that contradiction means that someone
     is lying. in good faith, people have different incentives for
     making their truth in memories. you never know what's
     going to happen.

n.b. -- email/SMS discovery is a big issue and very costly....

biz org class 1

"the corporation"













"corporations create great wealth but cause great harm." -- do you agree? 
"corp's are designed to benefit the stockholders and not the stakeholders." -- who are these stakeholders?

two methods of stockholder investment to raise capital:
1. invest w/ a promise of profit (equity instruments) if the company does well. risk based with a requirement of a profitable venture.
2. selling notes or bonds (debt instruments) with a promise to be repaid a specific amount at a specific time. creditor with a promise to be repaid.

stakeholders are consumers, employees, creditors, the community in which companies do business.

corporation structure.
1. shareholders
2. officers
3. board of directors (monitor)

another view: all groups key to the corp's success are the corp structure.
expand the corp structure listed above to include consumers, creditors,
suppliers, employees, the business community

do corporations have a social responsiblity? (blog article)

open secrets, gladwell article.

AP smith v. barlow: corporation wanted to donate money to princeton
and shareholder objected. the court determined corporations are not
by their nature eleemosynary institutions but instead institutions which 
exist solely for the benefit of its shareholders.

subprime loans/mortgages.

securitization

Dodge v. Ford Motor Co. about the competitive relationship between the dodge brothers and henry ford. the dodges were both shareholders and parts manufacturer suppliers to ford. when ford decided to assembly line and create its own parts, dodges lost a major customer. fiduciary duties are owed from ford to the dodges in the positions and relationship between the company and its shareholders.

ford got to build a new plant but also had to establish new dividends.... there's a lot of probabilities involved. ford felt like he had already made the dodges incredibly rich, and he didn't want to have to continue issuing large, special dividends. though there is some discussion of non-competition, the court doesn't discuss any probability of ford withholding to make the dodges unable to compete.

commercial arbitration class 1

exam: "give a fair shake, you wont' have a problem."
tele ext. 6008
room 4-10


right to a jury trial, though this could be waived in a contract.

late 19th cent/ early 20th cent arbitration:
something about the right to go to court unless you really, really, really don't want to.
when court was faced with an arbitration agreement, it became an issue of whether or not the court handled it or gave it to an arbitrator.

"ouster of jurisdiction": the courts were very protective of their dockets -- simply put, a lot of judges didn't want to be put out of business. and also, most judges had a feeling that arbitrators couldn't handle cases as well as they did. many courts would hold that you couldn't even settle cases by arbitration. so the arbitration clauses proved fairly useless.

1920s -- the NY arbitration statute restructured this.
see NYCPL s. 7501

after this came the federal arbitration statute, largely modeled on the NYS one. over the years, all states incorporated similar statutes to deal with enforcement of arbitration clauses in contractual disputes.

now, the arbitration clause can be interjected and administered as the parties see fit in the confines of the contract.

arbitral tribunal: place where you go to conduct arbitration. simplified procedural rules, but still the assumption is that once you select a tribunal, you will be incorporating their rules.

commercial rules of the american arbitration association.

financial industry regulatory authority (finra).


enforcement -- what does that mean?
basically, that if someone is not cooperating, then you should be able to go to court with an injury that can be addressed in court and be remedied.

each of the statutes allows for creating an award that settles a dispute.

there's nothing in the statutes that discuss whether or not an appellate can review de novo/reverse a decision *only if the tribunal arbitrator is wrong* (this is a concern in the consumer and the brokerage areas), but the standard is that for errors or law or fact -- generally is not a review.

are arbitrators supposed to apply the law? SCOTUS says "arbitrators are supposed to stay faithful to the statutes" but what does this mean???

the US has been super gung-ho arbitration over the past 20 years. but when these statutes were written, there weren't anti-discrimination acts, securities acts, anti-trust acts... these are based on common law issues! the federal courts deal with other types of statutory claims because of federal question/diversity. SCOTUS has knocked down a lot of case law that said stat claims were not

there's frequently motions in congress to cut back on arbitration of commercial/consumer disputes. and obama banned federal contracts that have employee arbitration clauses.

arbitration -- a sense that there's more flexibility to do equitable remedies. but it's hard to say how far that goes....

integral elements:
1. at least one neutral arbitrator
2. fundamental right to put in a case. rules of evidence don't apply. must let material into the record.
3. procedures that are fundamentally fair. such as procedures for selection of arbitrators, neutrals, etc.
4.

proRo class 1

prof. degirolami

office hours 2-4:30
www.ncbex.org/multistate-tests

next proRes date is 11/6/10. take additional bar prep mpre class.
don't procrastinate on the mpre.

reading assignments are on twen

exam:
- 2.5/3 hrs
- limited open book

- multiple choice (about 15)
- a very substantial essay
* conflicts will be tested on the exam and must be mastered
* the model rules must be mastered/internalized


n.b. -- for monday class, don't need to read 39-53. that will come up later in rule 10.13

read spalding v. zimmerman for monday.

model rules for pro conduct.
purpose of the rules is to know
1. basis for discipline for lawyers
2. what conduct is correct for lawyers to follow

can correct behavior be determined and managed by a rule???

read rule 2.3
read rule 2.1

the ABA.
inherent powers doctrine: courts have authority over lawyers, stemming from common law.
bar admission: typically you only need to take the bar admission for the state in which you want to practice. not always the case tho -- sometimes the jurisdiction requires state and fed.

to practice:
     - gotta pass the bar
     - gotta pass character and fitness
     - gotta have "sponsors"

n.b. -- mirror your bar apps on your law school apps, because they will compare the two (wtf??)

hypo. let's say you have a mega corp. v. a widow. let's say one or both parties wants to stall in discovery. should there be a differnce if a party is inexperienced, economically disadvantaged, etc... see comment 3 of rule 2.1. does the mega corp need less protection than the widow? should it be assumed that the corp should know what's moral/ethical, whereas the widow couldn't be assumed to know what's moral/ethical?

two types of clients - repeat clients and one-time players

hypo. you know your client is guilty. you also know an eyewitness has an impairment that questions whether or not her methods of correctly assessing his culpability was faulted. what does honesty require in this situation?

hypo. you represent a products manufacturer and the other attorney is a young and inexperienced attorney making a lot of mistakes. is it fair to take advantage of those mistakes?

manufacturer client is getting clobbered by market and wants to outsource. it will mean that many people lose their jobs. client consults you on the WARN act, considering the mass layoffs, and the ways it can avoid the regulations of the act. do you tell the client that it's behaving badly?

why rules? these hypos above are difficult questions to answer. because people disagree in good faith about what morality requires, and so there needs to be some kind of standard for legal practice.

client has legal entitlement + means = lawyer has no right to morally advise

for next time: readings on prof engagement on twen.