Archive for April, 2008

The attorney/client privilege has many implications, one of which being that in civil cases, a party cannot obtain discovery from the opposing party’s lawyer of information told to him by his client. The primary reason for this is that a person has to be able to have 100% trust and confidence in his lawyer if the two are to work together to prepare a proper case.

In the criminal justice system, the attorney/client privilege looks a little different, at least in the public eye. One of the ethical requirements that obligates a lawyer is to never incriminate his client. The reasons for this are much the same as in the civil context. Even though we don’t like “bad guys,” they are nonetheless entitled to an adequate defense. If the system allowed lawyers to “rat out” their clients, the system would effectively deprive the accused of an adequate defense. Defendants would always be on guard, unable to trust their own attorney. They would resist divulging any information they wouldn’t tell the police and they would simply be unable to have an adequate defense.

With this in mind, consider the case of Alton Logan. Logan has been in prison for 26 years for a crime he didn’t commit. The true perpetrator, Andrew Wilson, had in fact committed the murder for which Logan is serving time. At the time, Wilson had told his lawyers that he, and not Logan, had committed that murder, but Wilson’s attorneys were bound by the attorney/client privilege and could not come forward with the information.  Logan was wrongfully convicted and only now that Wilson has died in prison has the privilege been released and the truth been able to come out.

It is very difficult to be in the position of defending a system which allowed an innocent man to spend 26 years in prison for a crime he didn’t commit. On the other hand, I’m not really defending it. The burden for falsely convicting Logan rests on the prosecution and Logan’s own lawyers. Since Logan did not actually commit the crime, we should blame the system that falsely convicted him.

The attorney/client privilege is good for the system, even though it occasionally seems to produce unjust results. It also highlights the reasons I have no desire to go into criminal law. The stakes are very high and the toll it takes on the conscience is not one I’m willing to pay.

Our federal court system operates under a “notice pleading” scheme, which simply means that a complaint filed to begin a lawsuit serves the purpose of putting the defendant on notice of the subject matter of the suit. It has been well-settled that detailed factual allegations are not required at the pleading stage; the plaintiff only need give enough information to make the defendant reasonably aware of the suit and able to begin preparing a defense.

So it was somewhat of a shock when, not even a year ago, the Supreme Court dismissed a RICO claim under a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim, based on the fact that the plaintiff’s pleadings failed to allege facts that crossed the line from “possible” to “plausible.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (U.S. 2007). The effect of such a ruling is still unknown, and some have gone as far as to suggest that Bell Atlantic may have ushered in a “post-notice pleading” era in federal civil practice.

Seventh Circuit Judge Richard Posner (the famed law and economics proponent and one of the most oft-quoted judges in casebooks of all colors) recently weighed in on the effect of Bell Atlantic. Judge Posner suggested that the holding of Bell Atlantic ought to be considered peculiar to complicated RICO cases and others like them, and suggested that the requirement for additional facts in the complaint which show a “plausible” claim is appropriate where discovery would be more costly than usual. Limestone Dev. Corp. v. Village of Lemont, Ill., No. 07-1438, 2008 WL 852586, at *5 (7th Cir. Apr. 1, 2008).

Judge Posner echoed the Supreme Court, stating that Bell Atlantic does not impose a heightened pleading standard. Nonetheless, it is hard to read it any other way. At the very least, Judge Posner’s explanation seems to indicate that those who will be most aversely affected by this line of cases will be those who are the most interested in obtaining relief, and it seems to protect those who are in the best position to handle the costs of the potential lawsuit. Large corporations typically have all the evidence, especially in RICO cases. The purpose of discovery is to unearth that evidence. By effectively holding that plaintiffs must have enough evidence to even get to the procedural phase in which they are empowered to obtain it places an additional hedge of protection around large corporations who now merely have to claim that the plaintiff’s complaint (while “possible”) is not “plausible,” and contend that discovery would be more costly than usual.

HT: Fight the Hypo

In considering restrictive covenants in land deeds, there are two general ways to approach the underlying legal theory. First, the contract theory of equitable servitudes looks at a servitude or a covenant as a device creating a contractual relationship between the parties. So if O conveys a parcel of land to A by a deed stating that the land may only be used for residential, single-family housing, under the contract theory, the deed operates as a contract between O and A. At this point, the normal principles of contract law would apply to the transaction.

The other approach is the property theory, which would view the same deed not as a legal contract, but as a promise enforced in equity. Under this view, the deed does not create a contractual relationship between two parties but rather, it places a figurative asterisk on the land itself. Instead of A contracting to build nothing but a residential, single-family dwelling on the parcel, the parcel has instead been more or less permanently earmarked for that purpose, regardless of who may subsequently posses it.

The vast majority of legal scholars and law courts have adopted the property theory. The harshness of this approach can be seen in cases such as Western Land Co. v. Truskolaski, in which the defendant land company in 1941 subdivided a 40-acre lot, placing a restrictive covenant on each subdivided lot stating that they were to be used to residential purposes only, and forbidding their use for mercantile businesses. 495 P.2d 624 (Nev. 1972). Almost thirty years later, the very company which had originally owned, subdivided, and restricted the lots, sought to build a shopping center on several of those adjoining lots, which it still owned. The individual owners of the other lots filed suit seeking to enjoin the company from doing so, citing the restrictive covenants which the defendant had itself created. The court held that the covenant still stood and that the land company could not build a shopping center there.

Against this backdrop we see the Restatement (Third) of Property, Servitudes § 3.2 (2000) which appears to be swinging the balance the other direction. It rejects out of hand the common law analyses of “touch” and “concern” which are crucial questions in determining the validity of real covenants, opting instead for a default rule holding all covenants to be valid and giving preference to the intent of the parties. Furthermore, the Restatement declares invalid any servitude or covenant which “is illegal or unconstitutional or violates public policy.” Do these criteria sound familiar? They should; they’re foundational in contract law.