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 speciality 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 converations.  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.