Independent Counsel Research Articles

Back from the grave: the life, death, and revival of the independent counsel law, 1978–1994

This article furnishes a detailed case study of an American law which was established to create a semi-independent method for examining wrongdoing within the executive branch of the Federal government, thereby preventing a conflict of interest. Though the Independent Counsel Law was created in 1978 with strong support and eventually renewed twice, allegations of intrusiveness, ineffectiveness, and waste of government resources resulted in its lapse in 1992. The Independent Counsel Law was resurrected just two years later amid charges involving President Bill Clinton’s land deals. In addition to covering events associated with the law’s rollercoaster ride from 1978 through 1994, the essay presents arguments for and against the renewal of the Independent Counsel Law.

Introduction: The Hoffman Report in historical context

This brief introduction explains the historical background of the Hoffman Report, the 2015 independent counsel's investigation into the American Psychological Association's role in aiding ‘enhanced interrogations’ of detainees in the Bush Administration's Global War on Terror. It also outlines the articles in this special section of History of the Human Sciences on the Hoffman Report in Historical Context.

Why Reagan was not impeached

In the aftermath of Watergate and Vietnam, Congressional investigations uncovered the largely unknown activities of the CIA and other agencies, which included arming and interfering in the domestic politics of regimes in both Central America and Iran. These programmes had also involved supporting reactionary regimes in ways that some saw as drawing the United States into conflicts, like Vietnam, without public knowledge or consent. In 1987, it was revealed that the Reagan administration had operated a clandestine policy in Nicaragua that evaded the restrictions placed upon the executive by the Boland Amendment in terms of aid given to the Nicaraguan Contras and that National Security Council (NSC) staff had lied to Congress and concealed these illegal actions. They had solicited funds from foreign allies and smuggled arms to the Contra insurgents in support of their efforts to topple the Sandinista regime. Contrary to the Arms Export Control Act and to its own publicly stated policy, the administration had also sold arms, particularly missiles, to Iran, which had been branded a sponsor of international terrorism since the Iranian revolution, and which was currently at war with its neighbour, Iraq. Such deals had formed part of ‘arms for hostages’ negotiations that were also contrary to official policy. Finally, it was disclosed that profits from the arms sales had been diverted to fund the Contras and hence to evade Congressional restrictions on funding. This article explores why these illegal actions did not result in President Reagan’s impeachment. It considers the merits of the administration’s claims that this was a ‘rogue operation’ by zealots within the NSC, and the success of its efforts to present Reagan as eager to cooperate with efforts to discover the truth of what had happened. It reviews the interactions between the Tower Commission, Congressional investigations and Office of Independent Counsel probe (Lawrence Walsh) and shows how these contributed to Reagan’s ‘escape’ from impeachment. It reviews the argument that Reagan’s underlying health problems contributed to his lax management of NSC operations and it considers the importance of televised testimony, particularly that of Oliver North, in shaping public opinion in the administration’s favour. Finally, it considers how this significant episode in 1980s politics foreshadowed major trends in US politics that can be seen as culminating in the present, acute partisan divide, Donald Trump’s double impeachment, and a manifest decline in public trust and respect for American political institutions.

Reclaiming Oversight: The Article I Independent Counsel

Reclaiming Oversight: The Article I Independent Counsel

Prosecuting Executive Branch Wrongdoing

Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy. Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To further this critical objective, an investigative and prosecutorial structure must be implemented that grants a prosecutor sufficient latitude to pursue independent investigations while reigning in the exercise of runaway discretion. Indeed, at no time since Watergate has there been such a clear need for reform. This Article will explain why many of the controversies that beset the Mueller investigation can be sourced to the Special Counsel regulations—the rules that governed his appointment, as well as his investigative and prosecutorial authority. And it will explain why many of these ills can be ameliorated by enacting a modified and innovative version of the expired Independent Counsel Statute.

Professional Identity Formation, Leadership and Exploration of Self

The value-neutral approach to legal professionalism that prioritizes the duty to zealously advocate for clients within the bounds of the law, sometimes with disregard for individual values and morals, has resulted in a decoupling of one’s individual values from our understanding of the values of the legal professional. Such detachment of personal from professional values has resulted in a dissonance that impedes professional identity formation by failing to provide students and lawyers with the opportunity to understand how their individual values fit within the framework of professional values. The importance of professional identity formation as a concept that should be given greater focus in legal education is well-supported by the Carnegie Report and a wealth of research stewarded by The Holloran Center at the University at St. Thomas. Such research shows that supporting the growth of professional identity formation increases lawyer effectiveness. There are various stages of professional identity formation in members of the legal profession, the characteristics of which include: an internalized moral code characterized by deep responsibility to others, particularly the client; integrity/honesty; internalized standards of excellence at lawyering skills; ongoing solicitation of feedback and self-reflection; independent professional judgment and counsel to the client; adherence to ethical codes; and public service. Many of these characteristics of professional identity formation are also the focus of the study of leadership, but that discipline offers further insights into how to marry personal and professional values, which, at times, appears lacking in the formation of lawyer professional identity. Experts in leadership, such as Marshall Ganz, have suggested that by exploring our “story of self” — the “challenges we have faced, choices we have made, and what we have learned from the outcomes” — we can communicate our values and inspire others to act. In this Article, we propose that one way in which law schools can address the disconnect between one’s internal values and the values of the legal profession is to explore established leadership principles, such as emotional intelligence and ethical decision making, in the context of exploring one’s “story of self.” This Article, through a careful description and analysis of “Lawyers as Leaders: The Practice of Leadership,” a course that draws from the study of leadership in business and executive training programs, will explore the ways that the lessons of leadership development, in particular using the story-of-self frame, help improve the formation of professional identity in law students, which serves as a strong foundation upon which such students can further shape and refine their identities throughout their careers. In “Lawyers as Leaders,” we reinforce self-reflection, self-awareness, and self-direction as tools to develop values of fairness, honesty and trust. Through readings, simulations, and group projects centered on teamwork, communication and the exploration of self, students are required to reflect upon and assess their deeply personal values, based upon their individual backgrounds and experiences, and connect those values to the profession and their responsibilities to their colleagues, clients, organizations and society as a whole.

Calculating Conservation Easement Settlement Initiative Benefits

Following its recent success against syndicated conservation easements (“SCEs”), the IRS announced a Settlement Initiative (“SI”) on June 25, 2020 to “bring finality” to taxpayers battling the IRS on SCE issues. The IRS has been suspicious of conservation easements since 2016, when it first designated SCE transactions as “listed transactions.” In 2019, the IRS announced a “significant increase in enforcement actions” related to SCE transactions as SCEs made the IRS’ “Dirty Dozen” list of tax scams. This increase in enforcement actions has primarily resulted in IRS victories in the Tax Court. Thus, the IRS announced the SI to leverage its favorable outcomes against the taxpayers. Some critics are skeptical of the SI, claiming that the IRS has only been winning SCE cases on technical grounds and that the IRS does not hold as strong of a position as it claims on the true issues surrounding SCEs.7 Accordingly, many suggest that few taxpayers will take part in the SI. However, the IRS urges taxpayers to take a “hard, realistic look at their cases” with independent counsel. The settlement offer is time-limited and only offered to certain taxpayers with pending docketed Tax Court cases regarding SCE transactions. The IRS claims that there are about 80 relevant cases docketed. The full settlement offer will be sent out by mail to those eligible. However, the June announcement (IR-2020-130) outlines the “four key terms of the settlement offer.” The first two parts of this article examine the SI offer and consider how a participant who actually closes on the offer is affected. Specifically, Part I of this article provides an overview of the SI’s general terms and conditions the IRS requires to be met before an offer recipient can participate. Part II examines the applicable SI financial benefits and also puts into perspective any concessions a participant has to make. Part III concludes this article by calculating the financial results of different sample taxpayers including: (1) taxpayers who are never audited by the IRS; (2) taxpayers who accept and close on the offer; (3) taxpayers who decline the offer and continue litigation with the IRS. Ultimately, the goal of this article is to provide decision making context in preparation for potential future settlement initiatives.

How the Truth Dies

How the Truth Dies Jane Rosenberg LaForge (bio) Fake News Poems Martin Ott BlazeVOX Books www.blazevox.org/index.php/home/ 66 Pages; Print, $16.00 In his first two weeks in office, President Donald Trump likened the Central Intelligence Agency to Nazis and opened a speech at the CIA's sacred memorial wall of fallen agents with self-congratulations on his election. He fought with his press secretary and the media over crowd estimates for his poorly attended inauguration. He hung up on a telephone call with the Australian prime minister over a preexisting, "disgusting" agreement the US had to receive 1,250 refugees. And we haven't even gotten to the Muslim Ban. It is not impossible to keep track of the daily desecration of the country's norms and values this administration is determined to execute. But it is exhausting. If there's anything positive to be sowed from the pandemonium wrought by Trump and company, it might be the proliferation of venues for resistance, or opposition poetry, that have emerged to help civilians separate the worst from the horrible, and the shocking from the audacious. Martin Ott's Fake News Poems rises out of this fledgling tradition and sets an example few poets will match. His work speaks not only to the struggle against an amoral if not compromised White House but also to the mechanics of language, image, and spiritual belief that fuel the current rebellion. Ott's method is simple. He has selected a headline from each week of 2017 from either the Internet or printed media and used them for inspiration. Ott's results are unlike a great deal of resistance poetry, which tends to be literal, in the sense that its impetus is clear, practical, and rooted in the news cycle. That Ott's poems stray from this formula is not only due to his eclectic choice in headlines, but also in how he mines apolitical events for commentary on all the ways we live now. In "Nobody Knows Why Thousands of Skittles Were on Their Way to Feed Wisconsin Cows" (from The Grub Street column in New York magazine, January 23), Ott makes use of pop culture and political rhetoric to demonstrate the multiplicity of meanings available in a single word or image. Yes, thousands of Skittles candies spilled onto a Midwestern highway, and farmers revealed they were to be mixed into regular cattle feed; it's a way of cutting costs. "The secret to our hamburgers / is now revealed," Ott explains, before coming to the conclusion that we are "an entire nation quivering / like cows shaking for a sugar fix, starving for the rainbow." Are these the same Skittles a seventeen-year-old Trayvon Martin was summarily executed for, as he consumed them while black? Is this the same rainbow of Skittles' advertisements, demonstrating the casual, corporate invasion of our idiom via television commercials? Or is it a rainbow of liberation, since the rainbow is a symbol of the gay rights movement, or of Jesse Jackson's seemingly forgotten Rainbow Coalition? It could well be an old-fashioned, pot-of-gold-atthe-end-of-the rainbow, an optical illusion much like the belief the US is as level a playing field as Midwestern highways are flat. What that rainbow may symbolize is ultimately a matter of belief, for the narrowly held, potentially-niche, very personal beliefs are what support the more disturbing assertions and advances of Trumpism. If something is not true today, perhaps the incessant chatter on the news eco-system will make it true tomorrow. "The difference between life and death / is the same broken line between truth and lies," Ott writes in "Dead Man Lying," taken from a Salon headline of May 13 declaring Trump "one investigation away from impeachment." And yet after an independent counsel investigation into alleged collusion with Russia, and impeachment over soliciting Ukraine to interfere in the 2020 election, the president persists. Ott warns this is nothing new: "History holds the mantras / of liars and recasts them in our history books. / The walking dead has never been about zombies." Yet there is something singularly horrifying about contemporary life when the...

The Law: “Witch Hunts” and the Rule of Law: Trump, the Special Counsel, and the Department of Justice

AbstractThis article summarizes the previous behavior of presidents subjected to independent counsel investigations, and compares President Donald Trump's behavior to theirs. It concludes that while Trump's behavior is part of a larger pattern of presidential use of various executive prerogatives to try to counteract independent counsels, it departs from that pattern in several distinct ways. I conclude that several developments in the broader political environment over the last several decades have contributed to his distinctive behavior, including the highly fragmented media market, the degree of partisan polarization in the electorate, the conservative populist distrust of federal law enforcement, and the mainstreaming of the unitary executive theory in the courts and executive branch.

The Independent Counsel Statute: Reading Good Cause in Light of Article II

This paper uses the independent counsel statute to examine constitutional limits on legislative power to restrict the President’s ability to remove executive officers. As a federal prosecutor, the independent counsel exercises executive power. In the Ethics in Government Act, Congress provided that the President may remove an independent counsel only “for good cause, physical or mental disability, . . . or any other condition that substantially impairs the performance of such independent counsel’s duties.” 28 U.S.C. § 594(c)(1994). Using a multifactor balancing test, the Court in Morrison v. Olson held that the restriction did not unconstitutionally interfere with the executive power vested in the President by Article II or the President’s Article II duty to “take Care that the laws be faithfully executed.” In sharp contrast, Justice Scalia’s dissent argued that any restriction on the removability of an executive officer contradicts Article II’s Vesting Clause, which assigns all of “[t]he executive Power” to the President. After examining the Decision of 1789—the debate in the First Congress over the removal power—the paper suggests that the permissibility of congressional restrictions on removal raises a serious, hard-to-resolve constitutional question. In its 1789 debate over the President’s power to remove the Secretary of Foreign Affairs, the House split into three roughly equal factions: The first contended that the President has illimitable removal power; the second contended that Congress has discretion to determine an officer’s removability; and the third maintained that the President needed the advice and consent of the Senate to remove officers appointed by and with such advice and consent. After examining the arguments in that thoughtful and extensive debate (which occurred in the shadow of ratification), the paper concludes that the removal question constitutes a classic “difficult constitutional question”—the very sort that the modern canon of avoidance seeks to resolve through statutory construction rather than judicial review. The paper then argues that by reading open-ended “good cause” provisions to allow the President to remove executive officers for insubordination, the Court can avoid difficult constitutional questions about the scope of the President’s power.

Why Robert Mueller’s Appointment As Special Counsel Was Unlawful

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons. First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels at the level of United States Attorneys. They authorize the creation and appointment of Special Counsels to “assist” United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller who replace rather than assist United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel’s appointment. Second, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute – and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel. Third, the Special Counsel is, in all events, a superior rather than inferior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official is an “inferior” officer. Such a reading leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way. There are surely times when Special Counsels are appropriate. Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics. Any number of United States Attorneys have performed these functions with distinction. Statutes and the Constitution do not, however, permit the Attorney General to appoint a private citizen as a substitute United States Attorney under the title “Special Counsel.” That is what happened on May 17, 2017. That appointment was unlawful, as are all of the legal actions that have flowed from it.

Assessment of Confidentiality Clauses in Contracts Governed by Malaysian Laws: Some Tricky Issues to Consider and Pitfalls to Avoid

This article is written to serve as a guide in relation to contracts governed by the laws of Malaysia which incorporate provisions pertaining to ‘confidentiality’. The nature and implication of this provision entails the consideration of legal issues which may run deeper than the perceived simplicity of the language in which the clause is worded where the true effect and implications may not be ‘prima facie’ obvious or apparent. The guidance given in this article is premised upon legal analysis arrived at by the author after deliberating upon the issues faced in the course of her work as an in-house Legal Counsel and the writer disclaims any and all legal liability for relying upon this advice. The writer advices that the opinion of independent legal counsel is to be sought for each unique and individual scenario.

Right to legal representation of children in conflict with the law - International and regional standards

Legal aid/legal representation is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law. The right to legal representation is a precondition of children’s access to justice. Children left alone without any independent legal counsel are not only deprived of their voice, but are also subject to numerous abuses as they are often intimidated and not aware of their rights, although these are guaranteed by almost all of the countries in the world. The right to legal representation of children in conflict with the law is proscribed by the ICCPR, the ECHR, and specifically regarding children only the UN Convention on the Rights of the Child (CRC). However, even though these international instruments provide a consistent of standards on child‐friendly measures for the provision of legal assistance to children, they do so in a very general manner. Only the Council of Europe Guidelines on Child‐Friendly Justice, gives specific guidance on how lawyers, paralegals, should interact with child clients and their families, with child and other victims, with the police and prosecuting agencies, or with courts or tribunals designated to adjudicate cases. Therefore, there is much space for future development of possible international legal document that will address this issue in more specific manner.

Independence and Corruption in Korea

In the summer of 2001, after years of opposition, the Korean National Assembly passed and President D.J. Kim signed a new Anti- Corruption Act (“ACA”). Apart from whistle-blower protections, however, the ACA in its present form contains little of substance, its independent counsel provisions having been stripped away by the ruling party. Given that Korean law has long outlawed bribery, we are skeptical about the potential benefits of the ACA, which in part exhorts the nation to prevent corruption. It seems unlikely that telling people to be virtuous will make them so. Corruption has been a crime since 1953, and there has been a series of anti-corruption programs and laws since 1993, when the popularly elected civilian President Y.S. Kim took office. The prior reforms either worked or they didn’t. If they did work, why was the ACA necessary? If the earlier efforts failed, why did that happen? This article discusses private sector and official corruption in Korea, recounts the reform efforts including the ACA, and concludes that the reforms are unlikely to be effective without the establishment of an independent prosecutor. The system that produced Korea’s economic development eroded its own base. Corruption was an inescapable feature of the relationship among Korea’s government, banks and chaebol during the decades of development from the early 1960s to the mid 1990s, and it was also at the root of the 1997 crisis. It may now threaten the success of the post-1997 corporate governance reforms, which assume independent decision makers on boards of directors, in audit firms and in the regulatory bodies. There have been several high profile cases in 2000 and 2001; the business community complains about it but does little to effect remedy; and at least one analyst concluded that the educated middle class are so demoralized by persistent corruption that they are leaving Korea. This is something more than inevitable and universal criminality. Were this garden-variety stuff, newspapers wouldn’t be editorializing, NGOs wouldn’t be campaigning, and the government wouldn’t be announcing new programs.

Coming to Grips with the Ethical Challenges for Capital Post-Conviction Representation Posed by Martinez v. Ryan

In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state post-conviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” (and likely also prejudice), and thus a gateway to merits’ review of the claim in federal habeas corpus proceedings. This is potentially a good thing for many habeas petitioners, but creates a serious and as-yet unappreciated ethical problem for federal habeas counsel who also served as state post-conviction counsel. In capital post-conviction cases, the pre-Martinez preference and practice was for continuity of counsel from state to federal court. Now that ineffective representation in state post-conviction proceedings can serve as a basis for review of otherwise defaulted claims, however, a lawyer may be materially limited in her ability to provide ongoing representation by the client’s interest in asserting an ineffectiveness claim.Lawyers who practice in the area of civil litigation or transactional representation are familiar with these “prior work” conflicts and the solution to them, which is to obtain the informed consent of the affected client after full disclosure of the facts giving rise to the conflict and the available alternatives. In the capital habeas context, however, the usual apparatus of professional responsibility law, including the informed consent doctrine and the potential of malpractice liability for mis-handling a conflict, are ill-suited to dealing with the problem thrust upon petitioners’ counsel by Martinez. Ironically, even though the tort doctrine of malpractice and the rules of professional conduct are both intended to protect clients, the rules allow the possibly negligent lawyer to decide whether client protection requires disclosure and consent, or possibly withdrawal from representation. Given the significance of ineffective assistance of counsel in capital cases, however, this kind of self-monitoring would be intolerable. Hence, the puzzle presented by Martinez, which recognizes the inability of lawyers to self-monitor, but fails to provide a mechanism for ensuring that the client’s rights are adequately protected.We suggest, therefore, that petitioners’ counsel cannot bear the sole responsibility for solving the Martinez dilemma. The other systemic and repeat players – States’ attorneys and judges – also have to do their part. After all, it is the invocation of procedural defenses in an effort to preclude merits’ review of the habeas petitioner’s federal constitutional claims that creates the procedural morass we have described. This in turn leads to both inefficient litigation and unjust results. Thus, in most instances, if attorneys for the state agreed – either on their own or after being “leaned on” by the court – waived procedural default and allowed the court to proceed to the merits, litigation would proceed expeditiously and without the ethical taint of potential and actual conflicts of interest. If the claims are not bona fide, they will be rejected. On the other hand, if the issues not previously raised are in fact meritorious, then there are no true “losers” unless you are of the view that death sentences resulting from a trial infected with prejudicial constitutional error should be carried out. Without some cooperative solution, courts will be faced with motions for substitution of counsel or the appointment of independent counsel to evaluate the performance of state post-conviction counsel; state attorneys general will have to deal with the possibility of further delay while the conflict issue is adjudicated. Thus, our tentatively hopeful conclusion to this exploration of the conundrum of Martinez is that the institutional actors with a stake in procedures and outcomes will work together to create an avenue for credible claims of inadequate state post-conviction representation to be investigated competently, for clients to be fully informed and involved in the decision-making process, and ultimately the client’s wishes respected.

Ignorance is not Bliss: Why States Should Adopt California's Independent Counsel Requirement for the Enforceability of Prenuptial Agreements

Prenuptial agreements are gaining popularity among Americans as an effective means of financial protection in the event of death or divorce. It is widely accepted that prenuptial agreements merit additional procedural and substantive fairness requirements. However, states have very different requirements for enforcement, and courts often enforce agreements despite the use of unfair bargaining tactics. Requiring the advice of independent counsel ensures that the parties to a prenuptial agreement are aware of the terms of the agreement and demonstrates to the court that it was executed voluntarily. While independent counsel is often one factor that courts consider when examining procedural fairness, it is not a dispositive factor in the majority of states. In order to promote enforceability, create more predictable outcomes, and achieve greater equality in the bargaining process, this Note proposes that states adopt California's statutory provision, or a similar standard, which requires that the party against whom enforcement is sought obtained independent legal counsel prior to the execution of the agreement. In order to preserve the freedom of contract, the statute includes a waiver provision, which allows a party to waive the right to independent counsel as long as that party is fully informed, typically by the other party's lawyer, of the basic terms and effect of the agreement and the rights and obligations he or she is giving up by signing it. Key Points for the Family Court Community Prenuptial agreements differ from ordinary commercial contracts because the parties do not deal at arm's length with each other. States have varying procedural and substantive fairness standards for prenuptial agreements, but many do not provide sufficient protection for vulnerable parties. California requires independent counsel, or waiver, to find that a prenuptial agreement has been voluntarily executed. By adopting an independent counsel requirement like California's, states can ensure informed consent and bargaining equality, while promoting enforceability and predictability.

Prosecution among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing. By David AlistairYalof. College Station: Texas A&M University Press, 2012. 196 pp.

Prosecution among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing. By David Alistair Yalof. College Station: Texas A&M University Press, 2012. 196 pp. In decades since Watergate, every administration has faced charges of criminal misconduct. It is fact of life for modern presidency, which operates under greater public scrutiny, proliferation of ethics codes and anticorruption laws, and an increase in offices charged with enforcing them. In either Federal Bureau of Investigation (FBI) or Justice Department investigates those charges. But in some cases, special or independent counsel have been named. David Yalofs book examines conditions under which that decision is made. He aims to create a framework to assess need for special prosecutors (p. 25). It is an important question. A special prosecutor increases public trust in integrity of an inquiry, but there is potential for abuse stemming from unchecked prosecutorial discretion and lack of accountability. Yalof generally favors routine procedures, but one critical consideration is who serves as attorney general. He seeks to link the type of attorney and the process by which Department of Justice investigates executive branch wrongdoing (p. 7). He delineates three types of attorneys according to their relationships with president. Least connected is outer circle attorney general, one who is in strongest position to head neutral investigation and prosecution of executive misconduct (p. 27). The inner circle attorney general, with personal or professional ties to president, is less able to function independently in absence of political checks to ensure impartiality. When an attorney general comes from White House itself--the Oval Office attorney general--fair investigation becomes virtual impossibility (p. 28). In 26 case studies, Yalof examines interplay of each type with factors that contribute to risk of investigatory bias: when alleged misconduct involves president, vice president, family members, or officials in Justice or FBI. Political considerations also are salient: whether an election is upcoming, government is unified, or allegations implicate current or prior administration. The book has several strengths. It is well written and evinces solid research, including use of archival documents. Yalof employs case study method to good effect. By presenting so many, he necessarily treats them superficially, with some relevant details neglec0ted. But he is looking for broad patterns. His selections are meant to create a rich tableau (p. 32) of choices facing an attorney and in that effort, he succeeds. Yalof also contributes to literature on unique nature of attorney general's office, located at nexus of law and politics. He criticizes customary senatorial deference to president's choice, particularly Senate disinterest in nominee's independence of White House. Since success or failure of investigatory process... begins with choice of attorney (p. 7), greater Senate scrutiny is essential. His concluding chapter recommends scrutiny on par with that of Supreme Court nominee. …

Unethical Protection? Model Rule 1.8(h) and Plan Releases of Professional Liability

The American Bar Association’s Model Rules of Professional Conduct address the propriety of attorneys obtaining releases from their clients of either past claims or future claims against themselves. Under the applicable Model Rule, both types of releases require the involvement, or the opportunity for involvement, of independent counsel to review and advise the client on the issue. Releases in chapter 11 plans typically cover insiders, members of the creditors’ committee, and the debtor’s and committee’s counsel. Few courts or disciplinary bodies of the various state bars have addressed the ethical issues that arise when counsel insert into a plan of reorganization a lengthy provision that releases counsel from all past claims and all future claims arising out of the chapter 11 case or the plan of reorganization. This article examines the interaction of Model Rule 1.8(h) and plan release practice, concludes there is a conflict between practice and the Model Rule, and suggests a solution: making inclusion of a third-party release covering estate-compensated counsel an issue to be negotiated, reviewed, and approved as part of the process of retention of professionals early in the case, before parties rely on the availability of a release when rendering services. If the proper scope of a permissible release of professional liability is confronted early in the chapter 11 process, the Model Rule (or, more accurately, its locally-enacted analogue) can be complied with, and the effect of the release’s availability or non-availability on fee structures and other elements of compensation can be made explicit.

Taking the Next Step in the Legal Response to Domestic Violence: the Need to Reexamine Specialized Domestic Violence Courts from a Victim Perspective

INTRODUCTION S.S. and R.T.'s story involved many of the elements common to domestic violence cases: multiple instances of physical, verbal, and psychological abuse of S.S. by her ex-boyfriend R.T.; initial reluctance on S.S.'s part to report the incident to the authorities out of hope that the violence would simply cease; and the eventual arrest of and entry of order of protection against R.T. that he repeatedly violated, resulting in the filing of additional charges against him. (1) As these charges moved into court, S.S. assisted the prosecution by providing detailed written depositions outlining the history and circumstances of the altercations between her and R.T. (2) Soon afterwards, the case, People v. Tancredi--like many others involving multiple, interconnected matters related to domestic violence in New York--ended up in one of the state's Integrated Domestic Violence (IDV) courts. (3) Then, less than a month after R.T. was arraigned in IDV court, his attorney filed a separate lawsuit on S.S.'s behalf, alleging that certain state actors had violated her civil rights by coercing her into testifying. (4) Given the essential role S.S. was playing in the prosecution, the state immediately filed a motion to appoint independent counsel for her. (5) The IDV court, recognizing elements of domestic violence in R.T.'s actions, readily granted the motion: This Court is part of the community's coordinated response to domestic It would be contrary to our purpose and mission, if individuals charged with domestic violence offenses are permitted to utilize such a questionable attorney client relationship, as a sword, and thereby strategically block the prosecution of their cases.... Victims of domestic violence often fail to follow through with their initial willingness to cooperate with the People's prosecution. Many victims return to their abusive partners due to financial concerns ... [or] due to fear for their safety or that of their family and children. And for some women, having become so entrenched in a cycle of abuse and violence, they return out of habit. By inducing, or by merely permitting a victim to enter into attorney-client relationship with them, it is conceivable that the attorney participates knowingly or otherwise in the defendant's strategy of coercive (6) The court thus undertook to provide the victim with a list of advocate organization[s] to facilitate her access to an independent and experienced attorney who is fully familiar with the special and unique dynamics of representing a victim of domestic violence. (7) Tancredi offers a view into the ways in which specialized domestic violence courts, like the IDV court highlighted in the case, can offer effective response to what has been recognized as a societal epidemic of domestic (8) These courts--although they take slightly different forms in each of the jurisdictions in which they are implemented--are typically defined by a docket dedicated solely to domestic violence-related matters, court personnel trained in intimate panner violence, and close ties to community organizations that offer, among other things, batterer intervention programs and victim support. Whereas a non-specialized court's lack of resources might have prevented it from giving due attention to the state's motion, the Tancredi court was able to analyze in detail the issues it presented. Further, rather than simply assuming that order of protection alone would keep S.S. safe, the Tancredi court--because of its specialized training in domestic violence--remained attuned to the ways R.T. could harm her, even recognizing how his supposedly benevolent move of aiding S.S. in seeking legal redress for violation of her civil rights might fit into his pattern of manipulation and control. Finally, the court's alliances with domestic violence related community organizations allowed it to facilitate S. …

Report of Independent Counsel to SEC: Placement Agent Abuses at Kentucky Retirement System

Findings are that KRS should seek to recover the millions in undisclosed placement agent fees paid by KRS’ managers from the placements agents and the managers. However, given the over $1.3 billion in KRS assets potentially involved, investment-related damages well in excess of the placement agent fees discovered to date likely exist and may be recoverable. The paper also finds that the previous review by the Kentucky State Auditor of Public Accounts was inaccurate and had numerous omissions.