Journals
Volume 36, No. 1, Winter 2006
Lawyers as Witnesses
Douglas R. Richmond
Lawyers quite commonly are witnesses in litigation. They may be fact witnesses, as where a lawyer has drafted transactional documents for a client that become the focal point in resulting litigation when the deal unravels. Alternatively, a lawyer may witness events on which a client’s liability turns, making the lawyer a valuable source of proof for the client or an adversary. As expert witnesses, lawyers testify in legal malpractice and professional responsibility matters, insurance and reinsurance litigation, intellectual property litigation, securities litigation, tax controversies, and many other disputes.
Lawyers serving as fact witnesses are subject to the so-called “advocate-witness rule” or “lawyer-witness rule,” which is rooted in evidence law but is now a matter of legal ethics. The advocate-witness rule essentially holds that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. That general rule is, of course, subject to certain limits and, like all general rules, possessed of occasional exceptions. This article examines the contours of the advocate-witness rule in detail. This is important because there has long been confusion as to the rule’s purpose and application. In addition, the article challenges the application of the advocate-witness rule to summary judgment proceedings—a context in which the rule is unnecessary—and explains when “substantial hardship” may be invoked to permit a lawyer to function both as an advocate and as a witness.
With respect to lawyers serving as expert witnesses, the article discusses whether lawyer-experts have “clients” within the meaning of the conflict of interest provisions of ethics rules, and whether other legal principles impose a duty of loyalty on them. These are points on which there is scarce and conflicting case law. The leading authority on this subject is an ethics opinion by the American Bar Association’s respected Standing Committee on Ethics and Professional Responsibility, but, as the article explains, that opinion suffers from inadequate analysis and is seriously flawed. Ultimately, the author argues that lawyer-experts who violate their duty of loyalty as agents for the parties retaining them may be disciplined for conduct prejudicial to the administration of justice even if their actions are outside the scope of ethics rules specifically addressing conflicts of interest.
Looking Beyond the Boundaries: Incorporating International Norms into the Supreme Court’s Constitutional Jurisprudence
Josh Hsu
In recent years, the U.S. Supreme Court has been roundly criticized for incorporating international legal norms into its constitutional jurisprudence. This practice, however, appears to be one which will continue, perhaps increasingly, in the future. This article examines the increased role of international authority in the Court’s jurisprudence. The use of international authority was, for the most part, a dormant practice until it was recently revived three Terms ago in Atkins v. Virginia. That case, which discussed the constitutionality of the death penalty as applied to criminals with mental retardation, revived the custom of referencing international authority in death penalty cases after Stanford v. Kentucky had explicitly rejected such a custom in 1989. This practice of looking to foreign norms in the death penalty context was reaffirmed in 2004 when Justice Kennedy, writing for the majority in Roper v. Simmons, devoted an entire section to the views of other nations on the juvenile death penalty. It was, however, in Lawrence v. Texas in 2003, one year prior to Roper, in which the Court made its most significant stride in terms of referencing foreign authority. In holding that a Texas law prohibiting homosexual sodomy was unconstitutional, the Court in Lawrence cited to a case from the European Court of Human Rights. In doing so, the Court appeared to expand the role of international legal norms beyond the death penalty context and into other areas of its constitutional jurisprudence.
Critics have sharpened their attacks on this practice by arguing that it is antithetical to this nation’s most cherished principles. Specifically, it has been argued that referencing foreign authority violates the separation of powers, federalism, and principles relating to its fairness of application. The article examines these criticisms and argues that, although the concerns are credible, they are overstated. Finally, the article probes other valid reasons for the citation of foreign authority. It concludes that, in spite of the flaws of this practice, there are several gains to be made from participating in this international dialogue. With the makeup of the Court having recently changed, it remains to be seen whether these three cases foreshadow the Court’s future intentions with respect to citing foreign norms.
A Small Step Forward in the Last Civil Rights Battle: Extending Benefits under Federally Regulated Employee Benefit Plans to Same-Sex Couples
Janice Kay McClendon
In the United States, the legal recognition of same-sex relationships has polarized politicians and their constituents. Proponents of legal recognition, whether it be in the form of same-sex marriages, civil unions, or domestic partnerships, are fighting to secure the thousands of federal and state rights and benefits afforded to opposite-sex marriages. Massachusetts’ recognition of same-sex civil marriages, Vermont and Connecticut’s recognition of same-sex civil unions, and other states’ enactments of domestic partnership acts represent partial victories that bestow state-based rights and benefits to these couples. However, opponents, in their pursuit of protecting “traditional marriage,” have created roadblocks at both the federal and state levels. In 1996, Congress enacted the Defense of Marriage Act (DOMA), which limits federal rights and benefits to opposite-sex marriages. Forty-two states have followed suit with similar legislation that restricts state rights and benefits.
The aforementioned political climate’s impact on federally regulated employee benefit plans is particularly troublesome. The Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code) provide the substantive framework for private employer-sponsored employee benefit plans. As mandated by DOMA, ERISA and the Code do not recognize same-sex civil marriages or afford any rights and benefits to an employee’s same-sex partner. Among other things, unless an employer voluntarily provides otherwise, same-sex spouses and partners do not receive pension plan death benefits or health care coverage. And, even if an employer amends its benefit plans to include same-sex spouse and partner coverage, the employer has no ability to change the corresponding federal tax consequences. For example, distributions to same-sex spouses and partners are not eligible for tax-deferred rollovers into individual retirement accounts or other qualified retirement plans, and the value of employer-paid health insurance coverage is included in the employee’s gross income.
This article recommends amending ERISA and the Code to afford same-sex couples with employee benefits and special federal income tax treatment where their respective states have legally recognized their relationship under civil marriage, civil union, or domestic partnership laws. Limited federal recognition is consistent with each state’s decision whether to afford legal recognition to same-sex couples and promotes regulatory uniformity at the state and federal levels (the latter being one of the key policy goals of ERISA). Furthermore, limited federal recognition will support private employer initiatives to extend employee benefit plan coverage to same-sex couples and will have a minimal impact on federal revenues and private employers’ profitability.
Salt in the Wounds: Why Attorneys Should Not Be Mandated Reporters of Child Abuse
Adrienne Jennings Lockie
Although awareness of domestic violence has increased over the years, victims of domestic violence are still subject to societal norms that question why they did not leave. Battered women with children have been increasingly involved in the child protection system, including being charged with “failure to protect” when their children witness domestic violence. Added onto the issue of the effect of witnessing domestic violence, attorneys in some states are mandated reporters of child abuse. This article examines the implications of requiring attorneys, particularly those that represent victims of domestic violence, to report suspected child abuse. By examining the problems with mandatory reporting with respect to domestic violence, Professor Lockie suggests that attorneys should not be mandatory reporters of child abuse.
Because exposing children to domestic violence may be considered child abuse, reporting laws may require attorneys to disclose details of their client’s own abuse even though this conflicts with the attorney’s duties to the client, including the attorney-client privilege and the ethical responsibility of the duty of confidentiality.
This article explores two harms of mandatory child abuse reporting laws by attorneys. First, mandatory child abuse reporting laws impede the ability of attorneys to adequately represent domestic violence victims because the laws interfere with the attorney-client relationship. In this article, Professor Lockie examines the statutes in New Jersey to illustrate the interplay among the laws and explain the conflicts with requiring attorneys to report child abuse. Second, mandatory child abuse reporting by attorneys subjects domestic violence victims to danger and harm, including increasing the risks of physical danger and subjecting domestic violence victims to civil and criminal liability. Moreover, women of color and poor women who are victims of domestic violence are particularly harmed by mandatory child abuse reporting by attorneys.
Because of the detrimental consequences to domestic violence victims, attorneys who learn about child abuse in the course of their representation should not be required to report child abuse. The author offers several suggestions to improve protection for domestic violence victims with children, including eliminating mandatory child abuse reporting by attorneys.
Judge Posner’s Dissenting Judicial Oeuvre and the Aesthetics of Canonicity
Robert F. Blomquist
While a significant body of legal scholarship has emerged on appellate judicial style, little systematic study has been given to examining the nature of modern American dissenting opinion style. Style is an ambiguous and eclectic concept, and the dissenting opinion style of Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit is worth trying to delineate and to understand.
Professor Blomquist has written previous articles on Judge Posner’s “rookie season” as a federal appellate judge and Judge Posner’s inchoate dissenting opinion style over the course of his first decade on the Court of Appeals. In this article, Professor Blomquist continues his close and searching examination of Judge Posner’s dissenting oeuvre with a fresh critique of his dissenting judicial opinion style from 1992 through 2003.
The fivefold aim and structure of the article is as follows: first, a statistical overview of Judge Posner’s appellate decisions; second, a summary of Judge Posner’s dissenting judicial style during his early years on the federal bench; third, an analysis and evaluation of Judge Posner’s dissenting judicial opinion style during 1992–2003, his more mature years as a jurist; fourth, some conclusions about Judge Posner’s evolving dissenting judicial opinion style and comments on the aesthetics of judicial dissenting opinions; fifth, some thoughts, in relation to the corpus of Judge Posner’s dissenting opinion style as it has evolved over two decades, on the nature and aesthetics of judicial canonicity.
Professor Blomquist seeks in this article to bypass contentious ideological debates about what might be characterized as the “canon” of stellar judicial opinions and to explore in relation to the dissenting opinions of Judge Posner how aesthetic pleasure plays into what we in the legal community find valuable, how this can change over time, and how chance works on the formation of the judicial canon.
