Government
Monitoring of Attorney-Client Communications
Get a File by Right
Clicking Your Format below
Memorandum
(December
4, 2001)
TO: Hon. John D. Ashcroft, Attorney
General of the United States
Hon. Patrick J. Leahy, Chairman,
Committee on the Judiciary, U. S. Senate
Hon. Orrin Hatch, Member, Committee on
the Judiciary, U. S. Senate
FROM:*
Paul D. Carrington, Duke University School of Law
Kathleen Clark, Washington University
School of Law
George M. Cohen, University of Virginia School
of Law
Roger C. Cramton, Cornell University Law
School
Andrew L. Kaufman, Harvard Law School
John Leubsdorf, Rutgers University
(Newark) School of Law
Susan P. Koniak, Boston University
School of Law
David B. Wilkins, Harvard Law School
Charles W. Wolfram, Cornell University
Law School
AND In Part: Geoffrey C. Hazard, Jr.,
University of Pennsylvania Law School,
who agrees with our conclusion that the Rule discussed herein is
not legally valid and is profoundly imprudent.
* Institutional affiliations
are for purposes of identification; we speak as individuals not as
representatives of the educational institutions with which we are
affiliated. Brief biographical
statements from the AALS Directory of Law
Teachers 2000-2001 are attached.
Ethics Links of the U.S.
Army Standards of Conduct Office, Professional Conduct Branch
===========================================================================
Memorandum
|
TO: |
Hon. John D. Ashcroft, Attorney General of the United
States |
|
|
Hon. Patrick J. Leahy, Chairman, Committee on the
Judiciary, U. S. Senate |
|
|
Hon. Orrin Hatch, Member, Committee on the Judiciary, U.
S. Senate |
|
|
|
|
FROM:* |
Paul D.
Carrington, Duke University School of Law |
|
|
Kathleen Clark, Washington University School of Law |
|
|
George M. Cohen, University of Virginia School of Law |
|
|
Roger C. Cramton, Cornell University Law School |
|
|
Andrew L. Kaufman, Harvard Law School |
|
|
John Leubsdorf, Rutgers University (Newark) School of Law |
|
|
Susan P. Koniak, Boston University School of Law |
|
|
David B. Wilkins, Harvard Law School |
|
|
Charles W. Wolfram, Cornell University Law School |
|
|
|
|
AND In Part: |
Geoffrey C.
Hazard, Jr., University of Pennsylvania Law School, who agrees with our
conclusion that the Rule discussed herein is not legally valid and is
profoundly imprudent. |
RE: Government Monitoring of Attorney-Client
Communications
DATE: December 4, 2001
GOVERNMENT MONITORING OF
ATTORNEY-CLIENT COMMUNICATIONS
Introduction
We are a group of lawyers
and legal scholars whose professional specialty includes the law governing
lawyers. We write to offer our comments
to the Executive Branch and the Congress on the constitutionality, validity and
appropriateness of the interim rule on Monitoring
of Communications With Attorneys To Deter Acts of Terrorism, 28 CFR Parts
500 and 501, [BOP-1116; AG Order No. 2529-2001], RIN 11200-ABO8, issued by the
United States Department of Justice on October 30, 2001.
The rule, applicable to all
persons within the custody of the United States, citizens and non-citizens
alike, permits the Attorney General, without prior judicial authorization, to monitor communications of a detained
person when the Attorney General makes a specific determination that
“reasonable suspicion exists to believe that a particular inmate may use
communications with attorneys or their agents to further or facilitate acts of
terrorism.” 28 CFR § 501.3(d).
“Terrorism” is not defined by the rule and has no fixed legal
definition. Moreover, acts of violence
are included whether or not related to terrorism: The rule’s purpose is that of
“deterring future acts that could result in death or serious bodily injury to
persons, or substantial damage that would entail the risk of death or serious
bodily injury to persons” (id.); and the notice provision states that “all
communications between the inmate and attorneys may be monitored, to the extent
determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism.” 28 CFR § 501.3(d)(2)(i). (Emphasis
added.) An advance written notice of
monitoring would be provided to the detained person unless a court has
previously authorized surveillance. The
rule provides for screening of government agents who are doing the monitoring
to ensure that privileged communications are not retained by or communicated to
investigatory or prosecutory officers, i.e., use of what is referred to as a
“taint team” for monitoring and a “firewall” between that team and prosecutors.
We think that this rule is
unconstitutional because it violates the Sixth Amendment’s guarantee of
effective assistance of counsel. We
also believe that the rule is inconsistent
with the attorney-client privilege, unauthorized by law and unwise. The Justice
Department asserts that a number of cases, most notably Weatherford v. Bursey,
429 U.S. 545 (1977), support the constitutionality and validity of its
regulation. We respectfully but
forcefully disagree for the reasons set forth below.
I. The Rule Violates the Sixth Amendment
The Sixth Amendment
guarantee of counsel is a guarantee of effective
assistance of counsel. Strickland
v. Washington, 466 U.S. 668 (1984).
Effective assistance of counsel means at a bare minimum the right to
communicate freely with one’s counsel in order to prepare a defense. “One threat to the effective assistance of
counsel posed by government interception of attorney-client communication lies
in the inhibition of free exchanges between defendant and counsel because of
the fear of being overheard.”
Weatherford v. Bursey, 429 U.S. 545, 554, n.4. Nothing in the government’s rule or its statement supporting its
rule addresses the serious chilling effect that its monitoring rule will have on communications between lawyers
and clients subject to its rule. That
chilling effect constitutes a violation of the Sixth Amendment, which the
procedures the government promises to follow will neither prevent nor
cure. Those procedures will not
alleviate the very real interference with free communication between lawyer and
client that government monitoring of conversations will produce. It cannot seriously be maintained that
defendants, after being notified that the government is listening, will
communicate with their counsel in the same manner that they would if they
believed the conversations were private.
No “firewall” and no promise that the government will pursue its case
without using what it has learned from these conversations can change that
fact. See further our discussion in
Part II below explaining that as a matter of settled Sixth Amendment law these
measures do not cure the violation.
The serious and adverse effect on free
communication between clients and their lawyers, a problem ignored by the
government in its justification of its rule, makes this new rule an
unconstitutional infringement of the Sixth Amendment. It is that simple, and the case that makes this clear is Weatherford, the case the government
relies upon. Weatherford involved an undercover agent arrested with the
defendant in a subterfuge designed to protect the agent’s cover. The defendant invited the agent, who the
defendant believed was a confederate of his, to a meeting between the defendant
and his lawyer presumably because the defendant wanted to coordinate trial
strategy with this person he believed was his partner in crime. The Court held that this invited listener
who had revealed to no one the content
of the conversation he overheard did not violate the defendant’s Sixth
Amendment rights by having been at this one meeting.
It is true, as the government
emphasizes, that the Court concentrates in Weatherford
on the fact that no evidence overheard by agent Weatherford was used against
the defendant or even relayed to any member of the prosecutor’s office. And we recognize that the government’s
procedures are designed to recreate that circumstance by providing for a
firewall, i.e., screening the government agents who monitor lawyer-client
communications from the government lawyers who would prosecute the detained
clients. We reject, as we explain
later, that the firewall does recreate the situation in Weatherford, but here our point is different.
The Court in Weatherford concentrates on the threat to the defendant’s Sixth
Amendment rights posed by the prospect of using lawyer-client communications to
prosecute a case against the defendant because the other potential threat to
the Sixth Amendment posed by government monitoring of lawyer-client
conversations was not present in that case.
The Court goes to considerable length to point out that the chilling
effect to be expected when the government subjects all attorney-client
conversations to electronic surveillance or other monitoring is not present in
the invited-informer scenario. See
particularly, the Court’s lengthy footnote 4, 429 U.S. at 554. All any defendant need do to avoid the chill
that might be caused by the possibility that invited third parties might be
government informants, the Court points out, is to refrain from inviting any
third party to participate in lawyer-client discussions. Id.
But, as the Court explains, no such option is available to the defendant
who is subject to electronic surveillance of lawyer-client conversations. Id.
The Sixth Amendment violation is completely different for that reason
when electronic surveillance is the issue, and to read Weatherford as if it treated electronic surveillance as the
equivalent of the invited-informer is to rewrite the decision, something
neither the executive branch nor Congress is empowered to do.
Many cases hold that government
monitoring of a suspect’s communication with a lawyer, not authorized by a
prior court-approved surveillance, is a breach of a criminal defendant’s right
to the effective assistance of counsel.
This proposition is a background assumption in Weatherford itself in discussing prior cases so holding: Hoffa v. United States, 385 U.S. 293, 306
(1966) (distinguished because information acquired by an informer was not
relevant to a subsequent jury-tampering prosecution); Caldwell v. United
States, 205 F.2d 879 (D.C. Cir. 1953); Coplon v. United States, 191 F.2d 749
(D.C. Cir.), cert. denied, 342 U.S. 926 (1952) (defendant’s conviction for
espionage set aside; case remanded for a hearing to determine whether
surreptitious monitoring of defendant’s conversations with her lawyer had
occurred; if so, the conviction must be set aside). In Coplon, supra, the
court, discussing numerous federal and state decisions so holding, concluded:
“It is well established that an accused does not enjoy the effective aid of
counsel if he is denied the right of private consultation with him.” 191 F.2d at 757-60.
The Sixth Amendment right to communicate
with one’s lawyer to prepare a defense, appeal or other legal strategy serves
public purposes. As the Supreme Court
said in discussing the attorney-client privilege – the evidentiary cousin to the Sixth Amendment right to
communicate with counsel – the
privilege is designed “to encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in the
observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy
serves public ends and that such advice or advocacy depends upon the lawyer’s
being fully informed by the client.”
Upjohn v. United States, 449 U.S. 383, 389 (1981). The lawyer cannot provide the sound advice
that channels client conduct along lawful lines and enables the adversary
system to achieve just results unless the client is encouraged to provide full
and free disclosure of relevant facts and circumstances. The overlapping purposes of the Sixth Amendment guarantee and the privilege are
undermined by government monitoring of attorney-client communications.
Encouraging clients to disclose often
embarrassing matters fully and freely is always difficult; it becomes
impossible when a potential opposing party – here the government – is
monitoring lawyer-client communications.
Moreover, conscientious lawyers may feel compelled to decline
representation under these circumstances
because competent and adequate representation cannot be assured when
clients are likely to feel unable to communicate freely with their lawyers. See ABA Model Rules of Professional Conduct,
Rules 1.1 (competence), 1.4 (communication with client), 1.6 (confidentiality
of client-lawyer communications), and 1.16(a)(1) (lawyer cannot accept or
continue representation when doing so will result in violation of another
rule); and ABA Defense Function Standard, Standard 4-3.1.
II.
When the Government Takes Action to Interfere with the Defendant’s Right
to Counsel, the Defendant Need Not Show that the Action Resulted in Prejudice
at his Trial Before He is Entitled to a Reversal of His Conviction
In Strickland v. Washington, 466 U.S.
688, 692 (1984), the Supreme Court explained that when the government acts to
interfere with an accused’s access to counsel, the defendant need not show that
his trial was affected by the interference to win a reversal of his
conviction. This principle made plain
in Strickland was foreshadowed by Weatherford’s emphasis on the absence of
any intent by the government in that case to monitor the defendant’s
conversations with his lawyer, its emphasis on the fact that the defendant
invited agent Weatherford to the meeting, and the pains it takes to distinguish
the serious interference posed by electronic surveillance from the relatively
minor and easily avoidable interference at issue in the case before it. In any event, any doubt about whether
prejudice must be shown when the government intentionally acts in a manner
bound to inhibit the free communication between lawyer and client necessary to
the preparation of a defense was removed seven years later by the Court’s
decision in Strickland. Prejudice to the defendant is presumed in
situations of “[a]ctual or constructive denial of the assistance of counsel”
and in “various kinds of state interference with counsel’s assistance.” 466
U.S. at 692. See also, Coplon v. United
States, 191 F.2d 749, 759 (D.C. Cir. 1951), cert. denied, 342 U.S. 926 (1952):
“. . . the right to have the assistance of counsel is so fundamental and
absolute that its denial invalidates the trial at which it occurred and
requires a verdict of guilty therein to be set aside, regardless of whether
prejudice was shown to have resulted from the denial.”
What that means is that the government’s
firewall, its promise to seek judicial approval before disseminating the
information it gleans from monitoring lawyer-client communications, and any
other means it promises to employ to avoid any active use of privileged
information in the investigation of its case against the accused or at trial
are beside the point. The Sixth
Amendment violation is complete with the monitoring itself, given that it is
that monitoring itself and not any later use that threatens the defendant’s
right to effective assistance of counsel by inhibiting what lawyer and client
will say to one another.
III.
Independent of the Sixth Amendment, the Rule Is an Unauthorized
Impairment of the Attorney-Client Privilege
The Supreme Court has never held that
the Constitution requires states or the federal government to recognize an
attorney-client privilege, although of course the states and the federal
government are bound by the Sixth Amendment, which includes, as we have
explained, a right to communicate in confidence with counsel. The privilege, however, is not coextensive
with that Sixth Amendment right, most notably because the privilege applies
where the Sixth Amendment does not, i.e., in all civil cases, including habeas
corpus and deportation proceedings.
Recognizing the differences between the privilege and the Sixth
Amendment, the privilege is nonetheless important as a longstanding and central
feature of the American judicial system, a feature that may well have a
constitutional core.
In state courts the privilege is a
matter of state law and varies somewhat from state to state, making
generalizations tricky; in federal
courts the privilege is governed on federal matters by federal common law. Although the Supreme Court might well
sustain a duly enacted statute that substantially modified what has to date
been a matter of federal common law (assuming the Sixth Amendment right to
communicate was left intact), it is an entirely different matter to assume that
the Court would sustain a rule of the executive, a party to litigation,
designed to interfere with a longstanding privilege of opposing parties. In
sum, even if a statute curtailing the privilege might be upheld provided it
left the Sixth Amendment right to communicate intact, we do not believe any
court, state or federal, would uphold an executive department regulation that
did so in the absence of authorizing legislation. Cf. United States ex rel. O’Keefe v. McDonnell Douglas Corp., 132
F.3d 1252 (8th Cir.1998) (Justice Department rule permitting
government prosecutors to communicate with represented persons in violation of
state and federal court rules governing lawyer conduct held unauthorized by
statute and invalid).
The government states that its rule is
consistent with and respectful of the attorney-client privilege. We believe it is neither. The government should not adopt any rule
modifying so important and longstanding a privilege based on its own mistake
about the contours of that privilege or its hope that no one will call it to
account.
Most of the government’s statements
about the privilege in its notice announcing its new rule are correct. Due to a carefully limited exception, the
privilege does not extend to conversations between lawyer and client intended
to further a client’s crime or fraud.
The fact that a lawyer is unaware of the client’s illegal purpose is
irrelevant under the crime-fraud exception, as is the fact that a lawyer takes
no action to assist the unlawful purpose.
Those propositions, however, do nothing to show that this rule is
consistent with the privilege as it is has been interpreted and applied in the
federal courts. It is what the
government fails to mention about the privilege that undercuts its claim that
this rule respects the privilege and leaves it substantially intact.
In Zolin v. United States, 491 U.S. 554
(1989), the Supreme Court held that a federal court may examine privileged
material in camera to determine whether the crime-fraud exception applied upon
a showing made to a court that a person of good faith had reason to believe
that the exception might apply. Notice
that Zolin prohibits even an
impartial and independent Article III judge from examining lawyer-client
communications to determine whether the crime-fraud exception applies absent a
showing to a court that there is
reason to believe the exception applies.
Thus, according to the Supreme Court, even an impartial and independent
judge is not authorized by federal common law to examine lawyer-client
conversations without an individualized preliminary showing of client crime or
fraud made by a party to the court proceeding.
The federal attorney-client privilege thus would not permit a judge to
review attorney-client communications upon the executive branch’s bald
assertion that it had decided on its own that it had a reasonable suspicion of
intended crime; the reasons would have to be presented to and approved by the
court. How then can it be seriously contended that government lawyers or other
agents behind some firewall can review, impartially and independently,
attorney-client communications anytime the government believes it is reasonably
necessary? Surely, a federal judge is,
if anything, less likely to pass on information to the prosecution than
government agents behind the firewall, but still a judge cannot review such
communications without some preliminary showing made to that impartial and
independent judge.
We hasten to add that the showing that
the government must make under Zolin
is not onerous. Indeed, it is a minimal
prima facie showing that the attorney-client relationship has been used or is
being used with or without the lawyer’s
knowledge, to perpetuate a crime or fraud.
When the government, seeking to introduce evidence in a trial, has a
good faith reason to believe that a person has used or is using a lawyer to
further a crime or fraud, the government will usually be able, as a practical
matter, to persuade a judge to review the communications in camera to determine
whether the exception applies.
Moreover, the government can always
apply for a warrant to monitor lawyer-client conversations based on a showing
of probable cause to believe that the person in custody is using a lawyer or
attempting to use a lawyer, even a lawyer who is unaware he is being so used,
to commit a crime or fraud. Such
warrants, particularly in this time of declared national emergency, will not be
difficult to obtain unless, of course, the government wishes to monitor
lawyer-client conversations, contrary to the language in its rule, whether or
not it has any specific reason to believe that the person in custody might be
using a lawyer or the lawyer’s agents to further terrorism.
The government relies on National City
Trading Corp. v. United States, 635 F.2d 1020, 1026-1027 (2d Cir. 1980), to
support its firewall proposal, but that case and all the other cases like it
involve searches of law offices conducted pursuant to warrants issued by judges after a successful
probable cause showing by the government.
We agree that so-called “taint teams” are appropriately employed to
prevent the government from misusing information gleaned pursuant to a lawful
search of a lawyer’s office authorized by a warrant issued by a judicial
officer. Indeed, we recommend that the
government employ just such procedures after it obtains permission from a judge
to monitor the conversations the judge determines the government has good
reason to monitor.
IV.
The Firewalls the Government Proposes Do Not Cure Sixth Amendment
Violations
of the Type Contemplated by the Rule or
the Violations of the Attorney-Client Privilege
Contemplated by the Rule and Make Little
Sense
As we explained above, government
monitoring of all conversations between a lawyer and his client will inevitably
have a chilling effect on communication and, by impairing the preparation and
trial of the defendant’s case, constitutes a denial of effective assistance of
counsel in violation of the Sixth Amendment.
Firewalls do not address that problem.
They thus cannot cure the Sixth Amendment violation. As to the attorney-client privilege,
screening is not generally accepted as a cure of intentional violations of the attorney-client privilege. United States v. Noriega, 764 F.Supp. 1480
(S.D. Fla. 1991) – a district court opinion cited by the government as if it
justified the firewall approach – actually demonstrates this point. The court there emphasized that any
violation of the privilege was unintentional.
Indeed, to hold that intentional violations of the privilege by the
government or anyone else could be cured by screening would severely undermine
the privilege by inviting relatively costless intrusions upon it.
Finally, the firewalls proposed by the
government are likely to have limited effectiveness precisely because they will
largely eliminate explicit disclosures by suspects. The government’s rule assumes that people who know their
conversations are monitored will nonetheless seek to plot terrorism through
messages passed to unwitting lawyers or through the agents of those lawyers,
such as interpreters or clerks hired by lawyers and privy to lawyer-client
conversations. Of course, with the government listening to or videotaping
lawyer-client meetings or conversations,
no suspect is likely to send overt messages to further ongoing or
contemplated terrorist activities. If
there are messages, they will be concealed or encoded in some way. How are the monitoring officers shut off
behind the firewall to know enough about the ongoing investigation of those in
custody to decipher such messages?
Without communicating with the investigating/prosecuting team how is the
monitoring team supposed to provide an effective check on future terrorist
activity?
Conclusion
We conclude that the government’s
interim regulation is an unconstitutional infringement of suspects’ rights,
impairs the attorney-client privilege, and is unwise policy. The Constitution remains in force and the
government must remain ever mindful of the constraints that document places
upon it. We cannot preserve liberty by
abandoning it.
Biographical Information On Signatories
CARRINGTON, PAUL D., (M) Harry R. Chadwick Sr. Prof. Duke. b. 1931.
B.A., 1952, Univ. of Texas; LL.B., 1955, Harvard. Admitted:
TX, 1955; OH, 1964; MI, 1970.
Tchg. Fellow, Harvard, 1957–58;
Ass’t Prof., Wyoming, 1958-60; Ass’t Prof., Indiana Univ., 1960-62; Assoc.
Prof., Ohio State, 1962-64; Prof., 1964-65; Prof., Michigan, 1965-78; Dean,
Duke, 1978-88; Prof., since 1978. Subjects: Civil Procedure; History of
Legal Profession; International Litigation; Legal Profession. Justice on Appeal (with Meador &
Rosenberg), 1976; Civil Procedure: Cases and Comments on the Process of
Adjudication (with Babcock), 3d ed. 1983; Appeals (with Meador &
Rosenberg), 1994; Stewards of Democracy: Law as a Public Profession, 1999. Member:
ABF (Fellow); ALI. Rptr., Adv’y Com., Fed. Rules of Civil Proc., 1985-92.
CLARK, KATHLEEN, (F) Prof. Wash., St. Louis. b. 1961.
B.A., 1984; J.D., 1990, Yale.
Yale L.J. Admitted: PA, 1990;
DC, 1993. Pushkin Russian Lang. Inst.,
Moscow, 1984. Clerk, Judge Harold H.
Greene, U.S.D.C., DC, 1990-91; Counsel, U.S. Senate Jud. Com., DC, 1991-93;
Ass’t Prof., Wash., St. Louis, 1993-96; Assoc. Prof., 1996-99; Prof., since
1999; Vis. Prof., Cornell, fall 1999. Subjects: Legal Ethics, (S); Legal
Ethics; National Security Law; Public
Corruption; Secrecy & Whistleblowing; Uniform Commercial Code. V-Chair, Com. on Att’ys Emplymt. &
Prac., Admin. Law Sect., ABA, 1994-96, Chair, 1996-97; Exec. Com., Sect. on
Prof’l Respon., AALS, 1996-98; Exec. Com., Sect. on Legis., since 1999;
Consult., Transparency in Nigeria, 2000.
Vis. Prof., fall 2000, Michigan.
COHEN, GEORGE MEREDITH,
(M) Prof. Univ. of
Va. b. 1960. B.A., 1982, Yale; J.D., 1986; Ph.D., 1992, Pennsylvania. Arts. Ed., U. Pa. L. Rev. Admitted: NJ, 1987; NY, 1988. Winston Fellow, Inst. for Law & Econ.,
Pennsylvania, 1986-87; Clerk, Hon. Walter K. Stapleton, Wilmington, DE,
1987-88; Ass’t Prof., Pittsburgh, 1988-93; Vis. Ass’t Prof., Univ. of Va.,
1992-93; Assoc. Prof., 1993-95; Prof., since 1995; Edward F. Howrey Res. Prof.,
1997-00. Subjects: Agency & Partnership; Antitrust; Contracts; Law & Economics; Professional Responsibility
Principles & Practice, (S); Professional
Responsibility; Member: Phi Beta Kappa; Am. Law & Econ. Assn.
CRAMTON, ROGER C., (M) Robert S. Stevens Prof. Emer.
Cornell. b. 1929. A.B., 1950, Harvard; J.D., 1955, Univ. of
Chicago; LL.D., Nova; M.A., Oxford.
Comment Ed., U. Chi. L. Rev. Admitted:
VT, 1956; MI, 1962; NY, 1979. Clerk,
Hon. Sterry R. Waterman, U.S.C.A., 2d Cir., 1955-56; Clerk, Hon. Harold H.
Burton, U.S. Sup. Ct., 1956-57; Ass’t Prof., Univ. of Chicago, 1957-61; Ass’t
Dean, 1959-61; Assoc. Prof., Michigan, 1961-65; Prof., 1965-72; Chrm., Admin.
Conf. of the U.S., 1970-72; Ass’t Att’y Gen., Off. Legal Counsel, Dep’t of
Just., 1972-73; Dean, Cornell, 1973-80; Prof., 1973-83; Robert S. Stevens
Prof., 1983-00; Robert S. Stevens Prof. Emer., since 2000. Subjects:
Conflict of Laws; Legal Profession; Torts.
Guggenheim Award, 1987-88; American Bar Ass’n Research Award, 2000;
Conflict of Laws: Cases, Comments, Questions (with D. P. Curie, H. Kay & L.
Kramer), 5th ed. 1993; The Law and Ethics of Lawyering (with G.
Hazard & S. Koniak), 3d ed. 1999. Member: AALS (Pres., 1985); ALI (Coun.,
since 1975); Am. Acad. of Arts & Scis.
Consult., Admin. Conf. of the U.S., 1968-70; Mem., Comm. on Rev. of Fed.
Ct. App. Sys., 1973-75; Mem., Nat’l Comm. on Jud. Discipline & Removal,
1991-93.
HAZARD, GEOFFREY C., JR.,
(M) Trustee Prof.
Pennsylvania. b. 1929. B.A., 1953, Swarthmore Coll.; LL.B., 1954,
Columbia. Revs. Ed., Colum. L. Rev. Admitted: OR, 1954; CA, 1960; CT, 1982;
PA, 1994. Assoc. Att’y, Hart, Spencer,
McCulloch & Rockwood, Portland, OR, 1954-57; Exec. Sec., OR Legis. Interim
Com., Jud. Admin., 1957-58; Assoc. Prof., Cal., Berkeley, 1958-61; Prof.,
1961-64; Exec. Dir., ABF, 1964-70; Prof., Univ. of Chicago, 1964-71; Vis.
Prof., Yale, 1970-71; Prof., 1971-79; Rptr., ABA Com. on Stands. of Jud.
Admin., 1971-77; ALI Restmt. Judgments 2d, 1973-82; Rptr., ABA Com. on Prof’l
Stands. (Rules of Prof’l Conduct), 1978-83; John A. Garver Prof., Yale, 1979-82;
Dep. Dean, Sch. of Org. & Mgt., 1980-82; Nathan Baker Prof., 1982-87; Dir.,
ALI, 1984-99; Sterling Prof., Yale, 1987-94; Prof. Emer., since 1994; Trustee
Prof., Pennsylvania, since 1994. Subjects: Civil Procedure; Federal
Jurisdiction; Legal Profession. Law in Changing America (Ed.), 1968; Ethics
in Practice of Law, 1978; Pleading and Procedure, State & Federal (with C.
Tait & W. Fletcher), 1999; Law and Ethics of Lawyering (with S. Koniak
& R. Cramton), 3d ed. 1999. Member: ALI; ABF (Fellow).
KAUFMAN, ANDREW L., (M) Charles Stebbins Fairchild Prof.
Harvard. b. 1931. A.B., 1951; LL.B., 1954, Harvard. Pres., Harv. L. Rev. Admitted:
DC, 1954; MA, 1979. Priv. Prac.,
Newark, NJ, 1954-55; Clerk, Just. Frankfurter, U.S. Sup. Ct., DC, 1955-57;
Priv. Prac., Newark, NJ, 1957-65; Lect., Harvard, 1965-66; Prof., 1966-81;
Charles Stebbins Fairchild Prof., since 1981; Assoc. Dean, 1986-89. Subjects:
Commercial Law; Constitutional Law; Legal Profession. Commercial Law (with Countryman), 1971, 2d
ed. (with Countryman & Wiseman) 1982; Problems in Professional
Responsibility, 1976, 2d ed. 1984, 3d ed. 1989; Cardozo, 1998; Erwin N.
Griswold Prize, Sup. Ct. Hist. Soc., 1998.
Chrm., Com. on Prof’l Ethics, MA Bar Ass’n, since 1982; Com. on Jud.
Ethics, Sup. Jud. Ct., MA, since 1988; Com. on Rules of Prof’l Conduct, Sup.
Jud. Ct., MA, since 1995.
LEUBSDORF, JOHN, (M) Prof. & Judge Frederick Lacey
Scholar. Rutgers, Newark. b. 1942.
A.B., 1963, Harvard; A.M., 1964, Stanford; J.D., 1967, Harvard. Art. & Book Rev. Ed., Harv. L. Rev. Admitted:
MA, 1968; NY, 1989; NJ, 1992. Clerk,
Hon. Bailey Aldrich, U.S.C.A., 1st Cir., 1967-68; Assoc. &
Part., Foley, Hoag & Eliot, Boston, 1968-75; Assoc. Prof., Boston Univ.,
1975-80; Prof., 1980-86; Vis. Prof., Rutgers, Newark, 1984-86; Prof., since
1986; Vis. Prof., Columbia, 1990-91; Vis. Prof., Cal., Berkeley, 1993; Vis.
Prof., Cornell, 1996. Subjects: Civil Procedure; Evidence;
International Civil Procedure; Law & Literature; Legal Malpractice; Legal
Profession. Civil Procedure (with James
& Hazard), 4th ed. 1992; Man in His Original Dignity: Legal
Ethics in France, 2000. Member: ALI; Am. Soc. of Legal
Hist. Assoc. Rptr., Restmt. of the Law
Governing Lawyers, ALI, 1986-00; Fulbright Scholar, France, 1995. On lv., fall 2000.
KONIAK, SUSAN PARIS, (F) Prof. Boston Univ. b. 1954.
B.A., 1975, New York Univ.; J.D., 1978, Yale. Admitted: DC,
1979. Legis. Aide, Cong. Christopher J.
Dodd, DC, 1978-79; Ass’t to Pres., ABA, Chgo., 1979-80; Dir., Governance,
Greater Boston Legal Servs., MA, 1980-81; Exec. Dir., CLE, DC Bar, 1981-83;
Exec. Dir., CLE, Georgetown, 1983-85; Res. Assoc., Yale, 1985-87; Ass’t Prof.,
Pittsburgh, 1987-92; Vis. Ass’t Prof., Yale Sch. of Org. & Mgt., 1990-92;
Assoc. Prof., Pittsburgh, 1992-93; Prof., Boston Univ., since 1993; Vis. Prof.,
Cornell, 1997-98; Vis. Prof., Harvard, 1998-99. Subjects: Business
Ethics; Class Actions; Constitutional
Law; Criminal Law; Legal Profession. Leading Constitutional Decisions (with R. F.
Cushman), 17th ed. 1987; Cases in Constitutional Law (with R. F.
Cushman), 7th ed. 1989; The Law and Ethics of Lawyering (with G.C.
Hazard, Jr. & R.C. Cramton), 3d ed. 1999.
Member: Phi Beta Kappa. Adv’r to Pres., ABA, 1980-82, 1985-89; Mng.
Ed., Sup. Ct. Preview, AALS/ABA/AANP, 1983-84; Araden House Steering Com., ALI,
1985.
WILKINS, DAVID B., (M) Kirkland & Ellis Prof.
Harvard. b. 1956. B.A., 1977; J.D., 1980, Harvard. Sup. Ct. Off.; Harv. L. Rev. Admitted:
DC, 1982. Clerk, Hon. Wilfred Feinberg,
NY, 1980-81; Clerk, Hon. Thurgood Marshall, DC, 1981-82; Assoc., Nussbaum, Owen
& Webster, DC, 1982-86; Ass’t Prof., Harvard, 1986-92; Dir., Prog. on the
Legal Profession, since 1991; Prof., since 1991. Subjects: Civil Procedure; Ethical Issues in Clinical Practice:
Doctors & Lawyers in Dialogue, (S); Legal Profession: Globalization &
the Market for Legal Services, (S); Legal
Profession; Professional Service Firms in the Twenty-First Century.
WOLFRAM, CHARLES W., (M) Charles Frank Reavis Sr. Prof. Emer.
Cornell. b. 1937. A.B., 1959, Notre Dame; LL.B., 1962, Univ.
of Texas. Casenote Ed., Tex. L. Rev. Admitted: DC, 1962; MN, 1974. Assoc., Covington & Burling, DC,
1962-64; Mem., Fed. Aviation Agency, Contract App. Panel, DC, 1964-65; Ass’t
Prof., Minnesota, 1965-67; Assoc. Prof., 1967-70; Prof., 1970-81; Vis. Prof.,
Southern Cal., 1976-77; Vis. Prof., Cornell, 1981-82; Prof., 1982-99; Assoc.
Dean, Acad. Affrs., 1986-90; Interim Dean, 1998-99; Prof. Emer., since 1999, Subjects: Civil Procedure; Conflict of
Laws; Federal Jurisidiction; Legal Profession.
Professional Responsibility: Issues for Minnesota Attorneys (with J. M.
Clark), 1976; Modern Legal Ethics (Practitioners & Students eds.),
1986. Member: ALI; COIF. Rptr.,
ALI Restmt. of the Law Governing Lawyers, since 1986.
* Institutional affiliations are for purposes of identification; we speak as individuals not as representatives of the educational institutions with which we are affiliated. Brief biographical statements from the AALS Directory of Law Teachers 2000-2001 are attached.