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Posted
28 minutes ago, TwiceHorn said:

On a more objective note, I am expecting the DC Circuit to affirm Chutkan and deny Trump immunity literally any day now.

Cookie Monster Waiting GIF

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Posted
20 hours ago, Mdhorn said:

I wouldn't watch a game where the rules change depending on the conference or team.    

So I assume you don’t watch NCAA basketball. 

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Posted (edited)
9 hours ago, DDD Dad said:

So I assume you don’t watch NCAA basketball. 

Not much, no, unless Texas is playing and it's March. I stopped watching when I could no longer tell a foul or travel, since the refs didn't call either on star players/teams, especially in pro sports.  Fuck basketball, fuck the changing strike zone in baseball and fuck all the targeting, PI and hold calls against Texas but nobody else.     

1 hour ago, nbmishoid said:

Or Big 12 football.

Thankfully, we can all wash our hands of anything in the Big 12.   

Edited by Mdhorn
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Posted

On Monday Habba had requested a court delay because she had been exposed to COVID and felt poorly. I believe that she later said that she had tested negative but with her request and a sick juror, the Trump defamation trial was postponed until Thursday.

Then Habba was seen at the Trump victory party in NH Tuesday night. While this doesn't mean that she lied or that there was a delay only due to her, it definitely demonstrates poor judgement. And for someone who is struggling to competently represent her client, perhaps she should have spent the evening reading books, or watching youtube videos on being a lawyer.

As an aside, the NH incident came to light because a young Trump supporter posted a picture online with her. After he posted it, he was tossed out of the party even though he claimed that he had volunteered many hours to help Trump win. https://www.newsweek.com/alina-habba-covid-trump-lawyer-1863811

Quote

Later, he posted on X again, this time saying he had been kicked out of the event.

He said: "I was just kicked out of the Trump victory party for absolutely no reason.

"I was standing there speaking with other Trump supporters when I was asked to leave and pushed out of the venue.

 

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Posted

What a uniquely terrible person. And he still finds ways to surprise us with how awful he is. 

Hey let's make him the most powerful person in the world. 

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Posted
1 hour ago, nbmishoid said:

A racist rapist.  Say that 3 times quickly 

I picture in mind if you do that Fred Trump will appear a la a Dickens story, only way the fuck worse. 

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Posted (edited)
On 1/19/2024 at 1:20 PM, Gatorubet said:

But never underestimate what a really rich unprincipled party opponent will do to gain an advantage in a case

I think you meant “never underestimate just how ethically low lawyers are allowed to sink by their profession”

Edited by Bozo_Casanova
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Posted
21 minutes ago, Bozo_Casanova said:

I think you meant “never underestimate just how ethically low lawyers are allowed to sink by their profession”

Show us on the doll where the lawyer took your money?

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Posted (edited)
12 hours ago, Bozo_Casanova said:

I think you meant “never underestimate just how ethically low lawyers are allowed to sink by their profession”

The lawyer's first duty is to their client.  That duty mostly, but not completely, excludes other considerations, including duty to abstract notions like "the system," "democracy,"  and even the truth.  This is why the lawyer discipline system is geared toward sanctioning misdeeds directed at clients much more so than non-client-related misdeeds.

For example, when I did the Criminal Defense Clinic, in the introduction to the class, we were given a hypothetical: 

An apple sits on the ground underneath an apple tree.  Are you comfortable arguing that someone put the apple there rather than it having fallen from the tree?

So, criminal defense lawyers often are in the business of arguing "alternative facts."  When does that become a flat-out lie?  You think you know, but I submit that sometimes it's not that easy.  That and the nature of their clients often subjects them to criticism from the unsophisticated. 

Litigation lawyers are in the business, often, of stretching the laws and the system to their absolute credible limits to advance the interests of their clients.  To this end, lawyers often file "shitty lawsuits" apparently unsupported by existing law or fact.  They also prepare witnesses to omit or shade adverse facts, if not outright lie. The line between a groundbreaking civil rights suit and a frivolous one can get blurry.  People around here love to declare lawsuits they don't like "frivolous," but they're mostly wrong under the applicable legal standards.

So, you have lawyers like Habba and Powell that seem to be willing to lie to the courts.  We're pretty sure we know when they're lying, and yeah, we're probably right in that.  But, when you start carefully examining their lies and applying standards of proof for purposes of sanctioning or punishing them, what seems to be an obvious lie or misrepresentation can begin to look less like one for which you can punish them.  And when you consider that they are "lying" to advance the interest of their clients, a certain lenity comes into play.

For example, Habba told the court she had dinner with her parents who are now sick with covid.  That's verifiable and probably true (if not, that's a problem).  She told the court she had tested negative for covid.  That's probably verifiable and probably true.  She also told the court she was "feeling feverish" or something to that effect.  That's not verifiable and also probably not true.  But because it's not verifiable, makes a thin basis for sanctions.  Could the judge rule, like Engoron did concerning Trump on that occasion, that she's full of shit and sanction her?  Yes.  Would most judges?  No.

Lawyer ethics in some of these cases become incredibly situational.  Is the attorney-client privilege, which not only permits but demands that lawyers withhold truth from courts and other parties to protect the interest of their clients ethical?  This bothered me a bit in law school.  It's ethical if you consider that the duty is to the client, and not to the courts or some higher power. Situational.

CPAs have a duty of candor that's inconsistent with the attorney-client privilege.  In many countries, law and accounting practices are combined, but they can't be in the US because of the duty of candor.

Like dcbc said, things like this go in your "credibility ledger" and affect other things in the case, so it's not wholly without penalty.  Meaning, a lawyer who stretches things beyond credibility loses their case before the judge and jury.

I'm not at all saying that lawyers like Habba and Powell should go unpunished.  I'm just saying that it's a more subtle question than it initially appears.

Speaking of which, oral argument in the Bar's appeal in the Powell case is scheduled for February 7, which seems rather slow considering briefing was completed in September.  An opinion can be expected in a couple of months after oral argument, so like April or May.

Edited by TwiceHorn
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Posted
3 minutes ago, TwiceHorn said:

The lawyer's first duty is to their client.  That duty mostly, but not completely, excludes other considerations, including duty to abstract notions like "the system," "democracy,"  and even the truth.

For example, when I did the Criminal Defense Clinic, in the introduction to the class, we were given a hypothetical: 

An apple sits on the ground underneath an apple tree.  Are you comfortable arguing that someone put the apple there rather than it having fallen from the tree?

So, criminal defense lawyers often are in the business of arguing "alternative facts."  When does that become a flat-out lie?  You think you know, but I submit that sometimes it's not that easy.  That and the nature of their clients often subjects them to criticism from the unsophisticated. 

Litigation lawyers are in the business, often, of stretching the laws and the system to their absolute credible limits to advance the interests of their clients.  To this end, lawyers often file "shitty lawsuits" apparently unsupported by existing law or fact.  The line between a groundbreaking civil rights suit and a frivolous one can get blurry.  People around here love to declare lawsuits they don't like "frivolous," but they're mostly wrong under the applicable legal standards.

So, you have lawyers like Habba and Powell that seem to be willing to lie to the courts.  We're pretty sure we know when they're lying, and yeah, we're probably right in that.  But, when you start carefully examining their lies and applying standards of proof for purposes of sanctioning or punishing them, what seems to be an obvious lie or misrepresentation can begin to look less like one for which you can punish them.  And when you consider that they are "lying" to advance the interest of their clients, a certain lenity comes into play.

For example, Habba told the court she had dinner with her parents who are now sick with covid.  That's verifiable and probably true (if not, that's a problem).  She told the court she had tested negative for covid.  That's probably verifiable and probably true.  She also told the court she was "feeling feverish" or something to that effect.  That's not verifiable and also probably not true.  But because it's not verifiable, makes a thin basis for sanctions.  Could the judge rule, like Engoron did concerning Trump on that occasion, that she's full of shit and sanction her?  Yes.  Would most judges?  No.

Lawyer ethics in some of these cases become incredibly situational.  Is the attorney-client privilege, which not only permits but demands that lawyers withhold truth from courts and other parties to protect the interest of their clients ethical?  This bothered me a bit in law school.  It's ethical if you consider that the duty is to the client, and not to the courts or some higher power. Situational.

Like dcbc said, things like this go in your "credibility ledger" and affect other things in the case, so it's not wholly without penalty.  Meaning, a lawyer who stretches things beyond credibility loses their case before the judge and jury.

I'm not at all saying that lawyers like Habba and Powell should go unpunished.  I'm just saying that it's a more subtle question than it initially appears.

Speaking of which, oral argument in the Bar's appeal in the Powell case is scheduled for February 7, which seems rather slow considering briefing was completed in September.  An opinion can be expected in a couple of months after oral argument, so like April or May.

I could never have been a lawyer; my morals aren't that malleable.

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Posted
4 minutes ago, TwiceHorn said:

Like dcbc said, things like this go in your "credibility ledger" and affect other things in the case, so it's not wholly without penalty.  Meaning, a lawyer who stretches things beyond credibility loses their case before the judge and jury.

Courts, at least in my anecdotal experience (of the appellate variety), have a very long memory of lawyers' acting unethically or generally being full of shit in their representations.

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Posted (edited)
18 minutes ago, TwiceHorn said:

The lawyer's first duty is to their client.  That duty mostly, but not completely, excludes other considerations, including duty to abstract notions like "the system," "democracy,"  and even the truth.

For example, when I did the Criminal Defense Clinic, in the introduction to the class, we were given a hypothetical: 

An apple sits on the ground underneath an apple tree.  Are you comfortable arguing that someone put the apple there rather than it having fallen from the tree?

So, criminal defense lawyers often are in the business of arguing "alternative facts."  When does that become a flat-out lie?  You think you know, but I submit that sometimes it's not that easy.  That and the nature of their clients often subjects them to criticism from the unsophisticated. 

Litigation lawyers are in the business, often, of stretching the laws and the system to their absolute credible limits to advance the interests of their clients.  To this end, lawyers often file "shitty lawsuits" apparently unsupported by existing law or fact.  The line between a groundbreaking civil rights suit and a frivolous one can get blurry.  People around here love to declare lawsuits they don't like "frivolous," but they're mostly wrong under the applicable legal standards.

So, you have lawyers like Habba and Powell that seem to be willing to lie to the courts.  We're pretty sure we know when they're lying, and yeah, we're probably right in that.  But, when you start carefully examining their lies and applying standards of proof for purposes of sanctioning or punishing them, what seems to be an obvious lie or misrepresentation can begin to look less like one for which you can punish them.  And when you consider that they are "lying" to advance the interest of their clients, a certain lenity comes into play.

For example, Habba told the court she had dinner with her parents who are now sick with covid.  That's verifiable and probably true (if not, that's a problem).  She told the court she had tested negative for covid.  That's probably verifiable and probably true.  She also told the court she was "feeling feverish" or something to that effect.  That's not verifiable and also probably not true.  But because it's not verifiable, makes a thin basis for sanctions.  Could the judge rule, like Engoron did concerning Trump on that occasion, that she's full of shit and sanction her?  Yes.  Would most judges?  No.

Lawyer ethics in some of these cases become incredibly situational.  Is the attorney-client privilege, which not only permits but demands that lawyers withhold truth from courts and other parties to protect the interest of their clients ethical?  This bothered me a bit in law school.  It's ethical if you consider that the duty is to the client, and not to the courts or some higher power. Situational.

Like dcbc said, things like this go in your "credibility ledger" and affect other things in the case, so it's not wholly without penalty.  Meaning, a lawyer who stretches things beyond credibility loses their case before the judge and jury.

I'm not at all saying that lawyers like Habba and Powell should go unpunished.  I'm just saying that it's a more subtle question than it initially appears.

Speaking of which, oral argument in the Bar's appeal in the Powell case is scheduled for February 7, which seems rather slow considering briefing was completed in September.  An opinion can be expected in a couple of months after oral argument, so like April or May.

Yes, thank you. That is well put and I’m aware. But that’s hard to accept outside the legal realm for many because most of us are required to adhere to a higher standard. For example, if you work for a major corporation in America, particularly in management, your first duty is (at least implicitly) to the company. However- you are also bound by written standards of business conduct that prohibit actions analogous to what @Gatorubet describes. And while we can all think of spectacularly bad behavior by employees and officers of major corporations, the reason why we can do that was that it was newsworthy, they broke their own rules, and they were fired when it got out.

What you call duty is scandalous for the rest of us, and I’m glad it is.

Edited by Bozo_Casanova
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Posted
4 minutes ago, DigglerontheHoof said:

I could never have been a lawyer; my morals aren't that malleable.

Like I said, in evidence class one time, I declared privileges to be absolute bullshit and a barrier to the truth.  My stance on that has softened, but I rarely have to assert privilege other than in the face of demands from other civilians, where I have no problem saying it's none of their fucking business.

Most lawyers don't come across this kind of dilemma on a very frequent basis, other than arguing shaded facts or perhaps somewhat disingenuous positions on the law.

Some lawyers are willing to sacrifice their personal credibility in order to advance the interests of their clients (like most of Trumpco lawyers), some are not.  It is often a matter of degree.

Criminal lawyers probably find themselves toeing these lines more often than any others.  For that and other reasons, it can be a very difficult job.  And my hat is off to them most of the time.

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Posted (edited)
8 minutes ago, Bozo_Casanova said:

Yes, thank you, I am aware of all that. But that’s hard to accept outside the legal realm for many because most of us are required to adhere to a higher standard. For example, if you work for a major corporation in America, particularly in management, your first duty is (at least implicitly) to they company. However- you are also bound by written standards of business conduct that prohibit actions analogous to what @Gatorubet describes. And while we can all think of spectacularly bad behavior by employees of major corporations, the reason why we can was that it was unacceptable and they were fired when word got out.

What you call duty is scandalous for the rest of us, and I’m glad it is.

That's fine, but I take issue with "higher standard."  The duty to the client is "fiduciary plus."  It's about as high a standard as the law recognizes.  The duty is express and explicit, not implied.  There are also duties of candor to the tribunal, among others, that are in direct conflict with the duty to the client.  In extreme cases, it can present quite a dilemma to the lawyer.

Thankfully, most of us don't find ourselves in extreme cases and many of us avoid representations that would place us in them.  About the worst most lawyers face is being in possession of an incredibly damaging fact for their client and doing their damnedest to avoid that fact coming to light or into evidence.

Is that ethical in some absolute moral sense?  Probably not.  Is it justifiable in the legal arena, and thus ethical, probably so.

I get that you don't like it.  I'm just providing context.

Edited by TwiceHorn
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Posted
4 minutes ago, TwiceHorn said:

That's fine, but I take issue with "higher standard."  The duty to the client is "fiduciary plus."  It's about as high a standard as the law recognizes.  The duty is express and explicit, not implied.  There are also duties of candor to the tribunal, among others, that are in direct conflict with the duty to the client.  In extreme cases, it can present quite a dilemma to the lawyer.

Thankfully, most of us don't find ourselves in extreme cases and many of us avoid representations that would place us in them.

I get that you don't like it.  I'm just providing context.

Counterpoint—You cannot suborn perjury and owe a duty of candor to the court. 

Posted
Just now, DDD Dad said:

Counterpoint—You cannot suborn perjury and owe a duty of candor to the court. 

Counter-counterpoint.  I mentioned that, specifically, and that it's in direct conflict with the duty to the client.  I know how I would navigate that most of the time, and you do too, but some lawyers are going to take a different tack and while we don't necessarily like it, probably wouldn't demand their disbarment, either.  It can be a close question.  Witness prep can get pretty sweaty sometimes.

Posted
Just now, TwiceHorn said:

Counter-counterpoint.  I mentioned that, specifically, and that it's in direct conflict with the duty to the client.  I know how I would navigate that most of the time, and you do too, but some lawyers are going to take a different tack and while we don't necessarily like it, probably wouldn't demand their disbarment, either.  It can be a close question.  Witness prep can get pretty sweaty sometimes.

I guess I don’t see it as close a question as you’ve suggested. This reminds me of when the 11th circuit judge I clerked for swore me in to the bar (twice), he read me the oath, he repeated the part about candor two or three times. 
 

(He was a hell of a guy)

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Posted

Trump is the ultimate sovereign-none-of-your-rules-apply-to-me-citizen.

I'm buying a round for the room if we get to see him tazed during a courtroom outburst.

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Posted (edited)
8 minutes ago, DDD Dad said:

I guess I don’t see it as close a question as you’ve suggested. This reminds me of when the 11th circuit judge I clerked for swore me in to the bar (twice), he read me the oath, he repeated the part about candor two or three times. 
 

(He was a hell of a guy)

Yeah most of the time it's not a big issue.  Certainly not on appeal where the facts are mostly established.

In the hypothetical of the damaging fact, I think most of us would make a token effort not to reveal it but basically say "we have to eat this" and come up with a strategy to somehow minimize it.  Some lawyers might make more than a token effort, and we might call them "unethical," but that's like our opinion, man.

But when you consider that virtually every fact in a lawsuit is subject to proof and it's usually the other side's burden to disprove your "facts," that can get a little tricky.  If you think maybe "all conditions precedent" to a breach of contract have not been met, but maybe it's subject to proof, is it a lie to plead that "all conditions precedent have been met"?

That's a fairly innocuous example, but you can spiral downward from there.

On close questions, I think this is not one:  Your client tells you where a body is buried.  You can't tell anyone, most likely, even if a court asks you directly.  You know there are dozens of little dilemmas like that in a legal ethics class.

Edited by TwiceHorn
Posted
1 hour ago, TwiceHorn said:

That's fine, but I take issue with "higher standard."  The duty to the client is "fiduciary plus."  It's about as high a standard as the law recognizes.  The duty is express and explicit, not implied. 

Nothing like hiding behind """fiduciary duty""" to excuse wildly unethical behavior 

Posted
2 hours ago, TwiceHorn said:

Yes, thank you, I am aware of all that. But that’s hard to accept outside the legal realm for many because most of us are required to adhere to a higher standard.

I don't think there is any higher standard than zealously representing your client within the bounds of the law.  

Unless the higher standard is "double secret zelousness".

I actually think it's pretty easy to be moral as a lawyer just because the game you play does have lots of rules and guiding principles. 

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Posted
1 hour ago, DDD Dad said:

Counterpoint—You cannot suborn perjury and owe a duty of candor to the court. 

this is absolutely true. But it raises the issue of the lawyer as factfinder. The judge and the jury are the finders of fact, and they are the same parties who determine credibility. The main thing people don’t understand is that it is not the attorneys job to judge the credibility of their client, other than knowing about potential problems in the litigation and how to best avoid it. 

I had a Jones Act client who broke up with his girlfriend, and the girlfriend immediately indicated she was going to call defense counsel and tell them a bunch of things potentially true (and likely mad gf untrue) to wreck his case.  It does not fulfill my duty to my client by me withdrawing just because someone says something about my client that he denies. However, it was a significant enough threat that I changed my litigation strategy, and got the other side to agree to stipulate to liability in exchange for a range of damages that was capped.  That way the trial would only be on damages about his injuries - and the liability (and his credibility as to how the accident happened and gf stuff) would not come up.   IOW,  the client could never get the home-run verdict he wanted, but we might get a second base verdict at trial. While the client was limited in the ultimate recovery, there was zero chance that the client would get nothing because of losing liability when his ex gf unloaded on him at trial.   The federal judge, who was trying the case referred to the damage only trial to the magistrate, who just looked at the medicals.  My client was so severely injured that the magistrate put a lot of pressure to settle for a large amount - and we did.  Some non-lawyers who think I should’ve told the court, “I think he’s lying about stuff because his girlfriend had a lot of bad things to say“ just don’t get how things work.

My point is, I do not have a duty to tell the court “I’ve heard some bad stuff about my client, and I think he might be lying about some things”. It is not my job to have a trial within the trial and render judgment on who is telling the truth.   

On occasion I have had a client flat want me to help him or her lie in their litigation effort. A few of those clients got my severe talking to, and retracted their request to have me put on false evidence so I’d stay their lawyer.  A few disagreed, and I filed a motion to withdraw. Now, even if the client might want to lie, I can’t tell the court I want to withdraw because my client may lie.   What you do is motion to withdraw saying that you have a conflict with the client so egregious that you can’t resolve it.   The court knows <wink, wink nudge nudge > I got a big problem with this client and I’m notifying you judge.  The court will often let you out. Clients without lawyers very seldom win or settle. And a new lawyer is on the case will usually call the old lawyer on the case and say, “ Should I take this?”  If you have a good damage & liability case, you have no reason to withdraw so that usually raises issues. So, without saying your client is probably gonna lie, you can just repeat the language in your motion to the other lawyer.  He or she will probably get it.  

That client will probably not have a recovery or not a decent recovery, but that will be because of the client and not because of the lawyer helping them lie to the court

Regarding the incident I spoke of - with defense counsel and divorce court - I had absolutely no proof that they were behind the child custody shenanigans. If everyone doesn’t know, all lawyers  want to talk to ex-girlfriend/boyfriend and spouses - because they are the ones with the most dirt.  Put another way, Bristol wanting to know what dirt her ex was going to say about her was absolutely something standard that counsel does in important litigation  - see if they can find dirt on the other side. It wasn’t the fact that they were there that troubled me, it was the fact that no custody matter had been raised until she became a plaintiff.  I have no doubt that they were behind it, but I also had no evidence. As to the proof, we mentioned what happened to the judge, obviously, and she asked defense counsel why they were there. They replied that they monitored the civil dockets in the courts in our area to look for litigation involving our bellwether plaintiff.  Now, with that response you enter the realm of privileged communications with the client and the work product privilege. The other side and the court don’t get to see what you talk about with your client - because that is between you and the client.  If somehow I had could have subpoenaed their internal litigation strategy records and their trust account stuff I could’ve tracked down who paid for their lawyer.  But a multi-billion company isn’t so stupid to just issue a check from their attorneys general account to cover that kind of act. So I have no solid grounds to subpoena records - and the records are probably privileged due to client or work product privilege exclusion. 

The long post is to say that everyone who gets angry about the simple problem, doesn’t understand that they aren’t simple problems, and they are often competing ethical duties, like the duty to protect client, client confidence and the duty not to surrender work product that control your interactions with the court.

I wish life was as simple as many here think it is 

TL: DR.   people don’t get that there are a large number of very nuanced and sophisticated duties owed to a number of people - duties that often directly conflict. 

That is why lawyers have drug and alcohol and divorce problems greater than the average Joe

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Posted
3 hours ago, TwiceHorn said:

The lawyer's first duty is to their client.  That duty mostly, but not completely, excludes other considerations, including duty to abstract notions like "the system," "democracy,"  and even the truth.  This is why the lawyer discipline system is geared toward sanctioning misdeeds directed at clients much more so than non-client-related misdeeds.

 

 

There's the problem right there. 

 

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Posted
5 minutes ago, High Plains Drifter said:

 

There's the problem right there. 

 

OK, give me your rules to fix it.   If you’re not an attorney, you likely are not even aware of the duties involved, or why the bettervway you want it could be actually horribly worse for the entire system.

if you make a rule that you can kill people who enter your property, then people who enter by mistake, apologize and are leaving can be shot in the back and killed with no liability. But… But… But… That is a nice simple rule for when a murdering maniac wants to attack my family!  Yeah, that’s true, but that’s only a good solution if its a murdering maniac. If it’s a new neighbor in a neighborhood where all the houses look alike, shooting that person who’s leaving in the back is murder. But it is only murder because you’ve got another law that says you can only use force in certain ways. 

I don’t mean this in a negative way, but anybody can say “the system sucks. That’s the problem.”.  It is always true that most people who say that have exactly zero idea how the system works, but more importantly, have zero idea why the system works that way.     to understand ‘why’ you have to go to law school and practice law.   That is not me being condescending. Any gearhead on Surly is going to laugh at my complete ignorance about all things combustion engines.  Any of my suggestions about how to do things based upon my unfamiliarity with engine repair does not mean I’m stupid, it just means I don’t work in that field.    

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Posted
1 hour ago, 4th&amp;Five said:

Such a baby. 

 

I'm gonna go out on a limb and say pouting and throwing a tantrum in front of the jury prior to their decision isn't going to help him.  Prepare your anus Donnie.  

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