things can get complicated, because when we think of lawyers who work for corporations, they are taking orders from lay-management: in-house counsel is exactly this kind of framework. what's the difference between that and the
minor question/issue: can NAACP lay agents solicit individuals that lawyers of the organization will then represent?
major issue/question: the broader issue is that of the entity's goals and the client's goals, which may be conflicting.
1. constitutionally protected under 1st and 14th amendments.
2. if the state is to intervene, there must be a compelling state interest.
3. the common law offenses of barratry, maintenance and champerty -- ancient offenses that are almost nuisance offenses -- don't apply here because the litigants are seeking to enforce constitutional rights
4. the fear of a lay intermediary interfering with the rendering of legal services for pecuniary gain, whatever the validity when monetary stakes are concerned, has no application to this case. using the courts to fight segregation in this way is a different matter from the malicious, avericious use for purely private gain
dissent says that the doctrines of barratry protect the attorney-client relationship. harlan is anticipating and describing circumstances that may give rise to conflicts of interests where we're not even talking about pecuniary interests, that may
dissent uses different standard of proof: can't be said that state interest is incompatible with federal interest here -- because it is true that people are at least as willing to violate ethical rules for political motives as they are for financial motives.
barraters.
legal practice is about solving and vindicating actual harms by the clients desire to have their rights vindicated. harlan says you don't have to think about the selling of legal office purely monetarily -- in fact, it might be better to consider it by the selling of "cause litigation" to promote a political or social agenda.
cause litigation. many organizations created in 60s and 70s were leftist and focused on liberal and civil rights. conservative organizations were responsive and prominent in the 80s, with causes focused on economic/corporate/regulatory interests. these organizations sniffed out plaintiffs, pursuaded them to sign their names to complaints, directed legal strategies, and because courts in the early 60s/70s had relaxed standing for admirable cases, the courts had to give conservative organizations the same kind of loose standing!! so -- can it be said that the infusion into the litigation process of raw political fights fought by people with no real standing has corrupted litigation in just the way that laws against barratry sought to prevent?
money: the issue becomes more complicated when dealing with unions
is it permissible for unions to help their members through counsel to secure their rights, counsel that is part of the union?
1. public interest organization is looking to help outside clients but the union is looking to help it's own members
2. the public interest firm is looking to vindicate constitutional rights, but the unions are generally interested in more ordinary claims
3. public interest is usually to blaze a new legal trail, and the union interest is in saving a cost of getting outside counsel
justice black -- being able to obtain access to the court is fundamental sixth and 1st amendment right
union cases. once these came around, it became clear what is at stake: money
problem.
immigrants from former soviet union. can the lawyer bring in a language teacher?
5.4(b) - NO. this non lawyer may cause the lawyer to sacrifice the clients so that s/he may get rich.
is that a legitimate concern?
- reasons why someone would want to be a partner: control, direction, growth
- relationships
referrrals are OK so long as it's not an exclusive relationship (like, you can't tell a social worker that you'll refer all cases exclusively to that person)
litigation funding companies.
usery -- except in OH, there's going to be growth in the litigation funding industry.
rules 1.2 and 2.1
client determines ends, and the lawyer then finds the legal means.
it's 2002, the CIA has come to OLC seeking a legal opinion about enhanced interrogation techniques and if they're barred. imagine that the statute is drafted a little differently and the fairest reading of the statute is that waterboarding is actually lawful. it's not a slam dunk because the statute is vague, but on balance, the most lawyerly reading of the statute is that waterboarding is not prohibited. not-Yu says his conscience won't allow him to write an opinion that allows waterboarding because he thinks that that is torture. he writes a memo that the techniques are unlawful, and he has to get creative and aggressive in persuasiveness to reach the result. and with OLC's opinion issued, the CIA does not use waterboarding.
how similar is the not-Yu to the real Yu?
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