Oral argument was held on March 19th. The transcript is Interesting. Jacoby & Meyers is asking Judge Chatigny to declare Rule 5.4 unconstitutional. For me the argument is symbolic of the clash between commercial pressures on the legal profession and the profession’s determination to maintain its traditional values – especially, the independent professional judgment of lawyers in service to their clients – and to address the issue with step by step, lawyerly precision. Jacoby & Meyers, perhaps reflecting an urgency it feels to respond to changing circumstances, appears imprecise as to certain “ministerial” details of its own case even though it is seeking an equitable remedy, and impatient for the result it believes is it must have to carry out a business plan it may feel is necessary to its survival – speculation on my part. Judge Chatigny, unfailingly polite, appears focused on process and rules and his role as a federal district court judge.
In my opinion, this case is but one example of the ever-increasing economic pressure on the legal profession. LegalZoom is another. There is no doubt that law has by now long been a business. The question for the future is whether business principles and pressures, especially the pressure to make quarterly profits, will overwhelm the principles that have set law apart from other businesses. LegalZoom claims to “put the law on your side” and that one an solve many legal issues in a matter of minutes at low cost by using LegalZoom’s form filler. Will LegalZoom, which purports to not practice law and which disclaims responsibility for just about everything, take the place of a great many lawyers? What, if any, are the risks to clients and society of disconnecting legal services from accountability of the sort described in the Rules of Professional Conduct?
For the article by Karen Ali in the Connecticut Law Tribune dated May 3, 2013 click here.
The premise is that lawyers play an essential role in a democracy. Democracy is based on the consent of the governed. Lawyers play a key role in seeing to it that most people manifest their consent by obeying the law. Consent of the governed must be earned. Government secrecy creates distrust. Distrust undermines the consent of the governed. The Press, in its many manifestations nowadays, is a key link between citizens and their government. If the government seeks to block the Press from publishing stories that embarrass the government or stories about national security, citizens will be left in the dark about how taxpayer money is being spent and how government power is being exercised, which is why James Goodale’s new book, Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, is such an interesting and important book. I find reading “behind the scenes” stories of big cases fascinating. Beyond that Fighting for he Press describes how close the Nixon administration came to neutering a free Press. More disturbingly, Goodale points out how much the Obama administration has in common with the Nixon administration. Few lawyers practice First Amendment law, but all lawyers should have a passing familiarity with what is at stake when the government seeks to manipulate and block the Press, especially in the area of national security. Around the world, on a daily basis, government power is being exercised in the name of the American people. It is an open, but important question, how long before ignorance will undermine the consent of the governed. Goodale’s well written book is an important reminder of what is at stake and of how the Obama administration is aggressively attempting to keep national security information secret. Lawyers have a special obligation as citizens and as intermediaries between citizens and government to be familiar with First Amendment – Fress Press issues. Goodale’s book is an enjoyable way for lawyers and others to be reminded of what’s at stake when government attempts to punish and pummel a Free Press.
See the article at emptywheel, which includes a link to the 514 page report that described the misconduct and recommended discipline be imposed.
prosecutors. For a site focused on prosecutorial accountability, see The Open File.