This Note identifies ethical issues raised when criminal defense lawyers write non- fiction books about their clients, and it proposes new ethical rules that shift the balance of interests to weigh more heavily in favor of the client. Two principal ethical considerations arise for lawyers who write books about their clients. First, lawyer-authored publications may cause the attorney-client privilege to be waived and may result in adverse legal consequences for the client. Even where legal consequences do not inure, however, publication may violate the lawyer’s duty of confidentiality, principles of client dignity and autonomy, or both. Second, the lawyer- author’s interest in the commercial viability of the client’s story may conflict with the defendant-client’s interests. This Note offers revisions to the American Bar Association (ABA) Model Rules of Professional Conduct that would impose a substantial waiting period before defense counsel may publish stories about their clients. The revisions strike a balance between the client’s interest in effective representation, the lawyer’s interest in self-promotion, and the public’s interest in a transparent criminal justice system.
The American Bar Association’s widely adopted Model Rule 1.8(g) requires that attorneys handling aggregate settlements obtain the consent of each client before the settlement is finalized. This method is well suited to cases involving small-scale tort litigation with few parties, but Rule 1.8(g) does not meet the complex demands of mass torts, which can involve thousands of plaintiffs represented by a handful of law firms. Rule 1.8(g) creates a procedural obstacle to the efficient settlement of mass torts while obfuscating the ethical role of plaintiffs’ counsel in these settlements. This Note proposes a modified Rule 1.8(g), drawing upon a successful procedure used in asbestos bankruptcies. By incorporating these mechanisms from the Bankruptcy Code into the Model Rules of Professional Conduct, an alternative Rule 1.8(g) would reduce the costs of mass tort settlement, improve the clarity of the aggregate settlement rule, and protect clients from ethical misconduct by their attorneys.
The emergence of a new Supreme Court Pro Bono Bar, made up of specialty practices and law school Supreme Court clinics, has altered the dynamic of litigation related to public interest issues. The new Bar often brings expertise in Supreme Court litigation to cases where there may otherwise be a dearth of resources to support high quality lawyering. But at the same time, this new Bar is subject to market pressures that have important consequences. This Article shows how members of this new Bar are engaged in a race for opportunities to handle Supreme Court cases on the merits. At the certiorari stage, this Bar can be expected to engage in truncated case analysis, avoid coordination with lawyers handling similar cases, and otherwise make decisions that are influenced by each firm’s interest in being in a position to handle cases on the merits before the Supreme Court. Moreover, throughout the litigation, this Bar may be influenced by the merits opportunity that provided the incentive to take the case in the first place. This Article explores the
implications of this new dynamic in Supreme Court litigation for both pro bono practices and public interest practice communities. With respect to pro bono practices, this Article proposes principles that firms could adopt, including those that relate to the selection of cases for free representation and those that relate to the nature of representation that the pro bono practices provide once the firm has taken on representation. With respect to public interest practice communities, this Article considers the strategic decisions that practice communities face in light of the new Supreme Court Pro Bono Bar. This Article argues that practice communities must anticipate Supreme Court activity on the issues that interest them and must engage constructively both with lawyers whose cases might be possible targets for a petition for writ of certiorari and with the Supreme Court Pro Bono Bar.