In the 29th Judicial District

District Court of Wyandotte County, Kansas

Lamonte McIntyre, : Case No.

Movant :
:
v. :
:
State of Kansas, :
Respondent :

REPORT OF LAWRENCE J. FOX

1. I am a lawyer duly admitted to practice in the Supreme Court of the

Commonwealth of Pennsylvania; the Appellate Division, Second Department of the Supreme

Court of New York; the Supreme Court of Connecticut; the United States Supreme Court; and

numerous federal district courts and circuit courts of appeal. Currently, I am a Visiting

Lecturer in Law and the Crawford Lecturer at Yale Law School, teaching legal ethics and

professional responsibility. I am also the Supervising Lawyer of the Ethics Bureau at Yale

(EBaY), a clinic whose students assisted me in the preparation of this report as part of the

clinics activities. In addition, I am a partner and former managing partner of Drinker Biddle

& Reath LLP, a general practice law firm of approximately 650 lawyers with its principal

office in Philadelphia and branch offices in New Jersey, New York, California, Delaware, the

District of Columbia, Illinois, and Wisconsin.

2. I have regularly been consulted and have testified about the ethics and

professional responsibility of lawyers in various proceedings in both state and federal courts

throughout the United States, including Texas, Georgia, Florida, South Carolina, Pennsylvania,

Kentucky, the District of Columbia, Illinois, New York, Ohio, and Massachusetts. I was a

lecturer in law at Harvard Law School, teaching legal ethics and professional responsibility

Exh. 120
from 2007 through 2010. As the I. Grant Irey, Jr. Adjunct Professor of Law, I taught the same

topic at the University of Pennsylvania Law School from 2000 through 2008. I have lectured

on legal ethics at more than 35 law schools throughout the country, have been a visiting

professor at Cornell University Law School, and was the Robert Anderson Fellow at the Yale

Law School in 1997.

3. I have produced and participated in more than 350 continuing legal education

seminars and have written extensively in the field of legal ethics. I am a former member and

Chair of the American Bar Association (ABA) Standing Committee on Ethics and

Professional Responsibility and a former Chair of the ABA Section of Litigation, the largest

section of the ABA, representing almost 60,000 trial lawyers. I was an advisor to the

American Law Institutes twelve-year project, The Restatement of the Law Governing

Lawyers. I am a Fellow of the American College of Trial Lawyers. I was also a member of

Ethics 2000, the ABA Commission established to review the Model Rules of Professional

Conduct. My rsum is annexed hereto as Exhibit A. Neither I nor EBaY are receiving any

compensation for this undertaking.

4. I have been asked to opine about the ethical and professional responsibility

issues implicated in the trial and post-conviction proceedings of defendant Mr. Lamonte

McIntyre. For the purpose of preparing this affidavit, I have reviewed the trial record in State

v. McIntyre, Case No. 94CR-1213 (Wyandotte County). I have also reviewed and accepted as

true the facts stated in the affidavits from Niko Quinn, Josephine Quinn, and Gary Long, and in

the stipulation by Patrick M. Lewis in Hooker v. State, Case No. 04CV-2824 (Wyandotte

County) (filed May 22, 2006), and the facts stated in the hearing transcript of May 22, 2006 in

Hooker v. Statenamely that (1) Judge Burdette and ADA Morehead had been involved in a

Exh. 120
 romantic relationship from 1990 to January 18, 1991, (2) Judge Burdette and ADA Morehead

concealed their prior relationship from Mr. McIntyre during his trial, (3) ADA Morehead

threatened to bring contempt charges against eyewitness Niko Quinn and to have her children

taken away if she refused to testify against Mr. McIntyre during his trial, (4) ADA Morehead

withheld from the court and from Mr. McIntyre the fact that she had threatened Niko Quinn,

and (5) ADA Morehead suppressed statements from Niko Quinn and Josephine Quinn

informing her that Mr. McIntyre was not the perpetrator of the double homicide of which he

was convicted. On this basis, I have concluded to a reasonable degree of professional certainty

that Judge Burdette and ADA Morehead engaged in multiple ethical violations, and that those

violations substantially prejudiced Mr. McIntyre, and deprived him of his constitutional right

to a fair and impartial trial. Therefore, in order to vindicate Mr. McIntyres fundamental right

to due process, it is my view that this Court must vacate his conviction and set the case for

retrial before an impartial judge in which all other ethical violations are cured.

I. Introduction

5. As officers and representatives of the criminal justice system, I teach my

students that judges and prosecutors have a special duty to represent the interest of society as a

whole. Ferri v. Ackerman, 444 U.S. 193, 202-03 (1979). Specifically, these actors have legal,

ethical, and professional obligations to uphold defendants constitutional right to a fair trial and

due process of law. See U.S. CONST. amend. XIV ([N]or shall any State deprive any person

of life, liberty, or property, without due process of law.); Delaware v. Van Arsdall, 475 U.S.

673 (1986) ([T]he Constitution entitles a criminal defendant to a fair trial.).

6. As the Supreme Court concluded two weeks ago in Williams v. Pennsylvania,

No. 15-5040 (June 9, 2016):

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 Due process guarantees an absence of actual bias on the part of a judge.
In re Murchison, 349 U.S. 133, 136 (1955). Bias is easy to attribute to
others and difficult to discern in oneself. To establish an enforceable and
workable framework, the Courts precedents apply an objective standard
that, in the usual case, avoids having to determine whether actual bias is
present. The Court asks not whether a judge harbors an actual, subjective
bias, but instead whether, as an objective matter, the average judge in his
position is likely to be neutral, or whether there is an unconstitutional
potential for bias. Caperton, 556 U.S., at 881.

7. In recognition of the special role that prosecutors and judges play within the

criminal justice system, the American Bar Association (ABA) has promulgated ethical rules

designed to guarantee the protection of defendants constitutional rights. The preambles of

both the Model Rules of Professional Conduct and the Model Code of Judicial Conduct testify

to a commitment to preserving the quality and integrity of our legal system, and emphasize the

important roles that lawyers and judges play in accomplishing this goal. See MODEL RULES OF

PROFESSIONAL CONDUCT Preamble (Am. Bar Assn 2013) (A lawyer is . . . an officer of the

legal system and a public citizen having special responsibility for the quality of justice.);

MODEL CODE OF JUDICIAL CONDUCT Preamble (Am. Bar Assn 2010) ([T]he judiciary plays a

central role in preserving the principles of justice and the rule of law.). Each of these model

codes has been adopted by the state of Kansas. See KANSAS RULES OF PROFESSIONAL

CONDUCT (2007); KANSAS CODE OF JUDICIAL CONDUCT (2009).

8. In the trial of Lamonte McIntyre, both Judge Burdette and Assistant District

Attorney Morehead violated their ethical duties as agents and arbiters of the criminal justice

system. The numerous instances of ethical misconduct on the part of these actors rendered Mr.

McIntyres trial fundamentally unjust. First, Judge Burdette and ADA Morehead failed to

disclose to the defense the material fact that they had previously been engaged in an intimate

romantic relationship. By neither recusing themselves from the case nor providing the defense

Exh. 120
 with critical information that would have compelled a motion for disqualification, Judge

Burdette and ADA Morehead violated their personal duties as officers of the court. More

importantly, the concealed relationship obliterated any semblance of judicial impartiality in

Mr. McIntyres trial and infected every aspect of these proceedings with implicit bias. As a

result, Mr. McIntyre was denied his constitutional right to a fair trial.

9. Not only was the entire trial marked by tacit partiality, it was also rendered

overtly unjust by ADA Moreheads blatant acts of prosecutorial misconduct. In flagrant

violation of her ethical duties as a prosecutor, ADA Morehead coerced a key eyewitness into

perjuring herself on the stand and hid an abundance of materially exculpatory evidence from

the defense. There can be no question, in my opinion, that Mr. McIntyre was critically

disadvantaged by ADA Moreheads reprehensible conduct.

10. Because Mr. McIntyres conviction resulted from a trial in which both the judge

and prosecutorcollusively and individuallyhid evidence of their outrageous ethical

breaches, I conclude it is incumbent on the Court to remedy the injustices forced upon Mr.

McIntyre by vacating his conviction and granting him a new trial before an impartial and

independent tribunal.

II. Judge Burdette Violated the Kansas Code of Judicial Conduct and
Fourteenth Amendment of the United States Constitution by Violating
His Ethical and Professional Responsibilities as a Judicial Officer

A. Judge Burdette Violated Canons 1, 2 and 3, and the accompanying Rules, of the
Kansas Code of Judicial Conduct by Failing to Withdraw or Disclose his Romantic
Relationship with ADA Morehead

11. In our adversary system, judges wield awesome power. With that power comes

the responsibility to maintain high standards of professional conduct. The American judicial

system is premised upon the principle that an independent, impartial and competent

judiciary . . . will interpret and apply the law that governs our society. MODEL CODE OF

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 JUDICIAL CONDUCT Preamble (Am. Bar Assn 2010). Preserving fair and impartial courts is so

fundamental to our system of justice that it is considered a basic requirement of Due Process

under the Fourteenth Amendment,1 is codified in 28 U.S.C. 455 (governing federal judges),

and is enshrined in the ABA Model Code of Judicial Conduct (Model Code).

12. The right to an impartial judge is essential to our justice system because a

judges partialitywhether deliberate or unconsciousthreatens to infect both the process

and outcome of a trial. Raymond McKoski, Disqualifying Judges When Their Impartiality

Might Reasonably Be Questioned, 56 ARIZ. L. REV. 411, 432 (2014). In order to preserve the

standard of fairness and independence, judges are obliged to avoid conflicts of interest that

engender either impropriety or the appearance of impropriety. An intimate sexual relationship

between a judge and the prosecutor trying a case before him presents a flagrant conflict of

interest necessitating recusal. Judge Burdettes failure to disqualify himself in the criminal

prosecution of Mr. McIntyre or to disclose to the defendant the nature of his previous romantic

involvement with Terra Morehead constitutes judicial misconduct so egregious as to

necessitate the vacating of Mr. McIntyres conviction and setting his case for retrial before a

neutral judge.

13. The ABA Model Code of Judicial Conduct prescribes ways in which judges

must conduct themselves and establishes standards for maintaining and enhancing public

confidence in state court judges. MODEL CODE OF JUDICIAL CONDUCT Preamble (Am. Bar

Assn 2010). Through a series of revisions, the ABA has fulfilled this objective by converting

1
See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (The Due Process Clause entitles a
person to an impartial and disinterested tribunal in both civil and criminal cases.); In re
Murchison, 349 U.S. 133, 136 (1955) (A fair trial in a fair tribunal is a basic requirement of due
process.).

Exh. 120
 the Codes dictates from hortatory guidance into enforceable rules of judicial conduct,2 and by

requiring disqualification of a judge any time his participation in a matter creates even the

appearance of partiality.3 Kansass adoption of the most recent version of the Code reflects

the states commitment to championing the precepts that judges, individually and collectively,

must respect and honor the judicial office as a public trust and strive to maintain and enhance

confidence in the legal system. KANSAS CODE OF JUDICIAL CONDUCT Preamble (2009).

14. Canon 1 prescribes that [a] judge shall uphold and promote the independence,

integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of

impropriety. KANSAS CODE OF JUDICIAL CONDUCT Canon 1 (2009). The Canon distinguishes

actual improprietydefined as violations of law, court rules or provisions of this code

from the appearance of impropriety, which is gauged by the objective standard of whether

the conduct would create in reasonable minds a perception that the judge violated this Code or

engaged in other conduct that reflects adversely on the judges honesty, impartiality,

temperament, or fitness to serve as a judge. Id. r. 1.2 cmt. 5. By prohibiting even the

semblance of improprietyregardless of the existence of an actual transgressionthe Code

2
The 1990 version of the Model Code strengthened the Canons by substituting shall for
should in order to eliminate any lingering doubt concerning the mandatory nature of the
prohibition. Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety:
What the Public Sees Is What the Judge Gets, 94 MINN. L. REV. 1914, 1931 (2010); see also
MODEL CODE OF JUDICIAL CONDUCT Preamble (Am. Bar Assn 1990) (When the text uses
shall or shall not, it is intended to impose binding obligations, the violation of which can
result in disciplinary action. When should or should not is used, the text is intended as
hortatory and as a statement of what is or is not appropriate conduct but not as a binding rule
under which a judge may be disciplined.)
3
The 1972 version of the Model Code, for the first time, commanded that a judge disqualify
himself in a proceeding in which [the judges] impartiality might reasonably be questioned.
MODEL CODE OF JUDICIAL CONDUCT Canon 3C(1)(a)-(d) (Am. Bar Assn 1972). This
requirement is now set forth verbatim in Rule 2.11 of the current edition of the Model Code.
MODEL CODE OF JUDICIAL CONDUCT Rule 2.11 (Am. Bar Assn 2010).

Exh. 120
recognizes that judicial impartiality is crucial not only to protecting litigants Due Process

rights, but also to maintaining public confidence in the justice system. See KANSAS CODE OF

JUDICIAL CONDUCT r. 1.2 cmt. 3 (2009). Indeed, deference to the judgments and rulings of

courts depends on public confidence in the judiciary; see Joe G. Riley, Ethical Obligations of

Judges, 23 MEM. ST. U. L. REV. 507, 509 (1993), and the public cannot maintain trust in judges

if it does not believe them to be models of independence, integrity, and impartiality. See

Mistretta v. United States, 488 U.S. 361, 407 (1994) (The legitimacy of the Judicial Branch

ultimately depends on its reputation for impartiality and nonpartisanship.).

15. Canon 2 of the Kansas Code of Judicial Conduct provides that [a] judge shall

perform the duties of judicial office impartially, competently, and diligently. KANSAS CODE

OF JUDICIAL CONDUCT Canon 2 (2009). Rules 2.2-2.4 and the accompanying Comments offer

more precise guidance about how judges ought to manage their conduct in order to comply

with this broad directive. See id. r. 2.2 (mandating that judges uphold and apply the law and

perform all duties of judicial office fairly and impartially); id. r. 2.3 (requiring judges to

perform the duties of judicial office . . . without bias or prejudice); id. r. 2.4 (prohibiting

judges from permit[ting] family, social, political, financial, or other interests or relationships

to influence the judges judicial conduct or judgment). The Code makes clear that avoiding

bias and prejudiceand the appearance thereofis essential because [a]n independent

judiciary requires that judges decide cases according to the law and facts, without regard to

whether particular laws or litigants are popular or unpopular with the public, the media,

government officials, or the judges friends or family. Confidence in the judiciary is eroded if

judicial decision making is perceived to be subject to inappropriate outside influences. Id. r.

2.4 cmt. 1. Accordingly, Rule 2.11 requires a judge to disqualify himself or herself in any

Exh. 120
proceeding in which the judges impartiality might reasonably be questioned, including but not

limited to [circumstances in which] . . . [t]he judge has a personal bias or prejudice concerning

a party or a partys lawyer, or personal knowledge of facts that are in dispute in the

proceeding. Id. r. 2.11(A)(1) (emphasis added). Importantly, the mandate to recuse wherever

the judges impartiality might reasonably be questioned applies both where the judge is

susceptible to engaging in actual impropriety and where there would merely be an appearance

thereof. This command is consistent with the Kansas statute concerning judicial

disqualification, KAN. STAT. ANN. 20-311d (West 2014), which specifies that personal bias,

prejudice, or interest on the part of the judge are grounds for disqualification.

16. Finally, Canon 3 of the Kansas Code of Judicial Conduct applies the principles

underlying Canons 1 and 2 to a judges extrajudicial activities, providing that [a] judge shall

conduct the judges personal and extrajudicial activities to minimize the risk of conflict with

the obligations of judicial office. KANSAS CODE OF JUDICIAL CONDUCT Canon 3 (2009).

While [a] judge may engage in extrajudicial activities, except as prohibited by law or [the]

Code[,] . . . when engaging in extrajudicial activities, a judge shall not: (A) participate in

activities that will interfere with the proper performance of the judges judicial duties;

(B) participate in activities that will lead to frequent disqualification of the judge;

(C) participate in activities that would appear to a reasonable person to undermine the judges

independence, integrity, or impartiality; or demean the judicial office; or (D) engage in conduct

that would appear to a reasonable person to be coercive. Id. r. 3.1.

17. Judge Burdette violated each of the first three Canons of the Kansas Code of

Judicial Conduct by failing to recuse himself and presiding over Mr. McIntyres trial without

disclosing his previous romantic relationship with the prosecutor in the case, Terra Morehead.

Exh. 120
I conclude that Judge Burdettes conduct was improper, appeared improper, and undermined

public confidence in the independence, integrity, and impartiality of the judiciary.

18. There is a very strong argument that Judge Burdette engaged in actual

improprietyin violation of Canons 1 and 2, and Rules 2.2, 2.3 and 2.4by allowing his

relationship with Ms. Morehead to influence [his] judicial conduct or judgment. KANSAS

CODE OF JUDICIAL CONDUCT r. 2.4(B) (2009) (A judge shall not permit family, social,

political, financial, or other interests or relationships to influence the judges judicial conduct

or judgment.); id. r. 2.2 cmt. 1 (To ensure impartiality and fairness to all parties, a judge

must be objective and open-minded.); id. r. 2.3(A) (A judge shall perform the duties of

judicial office, including administrative duties, without bias or prejudice.). It is hard to

imagine a circumstance in which a judges impartiality would be more open to question than

where the judge has been intimately involved with counsel for a partyin this case, the

government prosecutor. Feelings of intimacyparticularly sexual intimacyare inherently

inconsistent with the ideals of neutrality and impartiality. In short, sex is different.

19. In Williams v. Pennsylvania, the Supreme Court addressed directly its view of

the effect that the passage of time has on a serious conflict. In Williams, the Respondent

argued that Justice Castilles role, as District Attorney in Mr. Williams prosecution, took place

almost three decades earlier. Nonetheless, the Court concluded:

Even if decades intervene before the former prosecutor revisits the matter
as a jurist, the case may implicate the effects and continuing force of his or
her original decision. In these circumstances, there remains a serious risk
that a judge would be influenced by an improper, if inadvertent, motive to
validate and preserve the result obtained through the adversary process. The
involvement of multiple actors and the passage of time do not relieve the
former prosecutor of the duty to withdraw in order to ensure the neutrality
of the judicial process in determining the consequences that his or her own
earlier, critical decision may have set in motion.

10

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 20. It is highly likely that, because Judge Burdette was unable to remain objective

and open-minded, Mr. McIntyres trial and post-conviction proceedings were infected by

bias and prejudice. The Kansas Supreme Court was correct when it explained in State v.

Foy, 227 Kan. 405, 411, 607 P.2d 481, 487 (1980), [t]he rule generally followed throughout

the United States is that the words bias and prejudice, as used in connection with the

disqualification of a judge, refer to the mental attitude or disposition of the judge toward a

party to the litigation . . . . Bias and prejudice mean a hostile feeling or spirit of ill will against

one of the litigants, or undue friendship or favoritism toward one. Because a judges sexual

relationship with the prosecutor appearing before himeven if that relationship is no longer

ongoing4is highly likely to predispose the judge to experience feelings of undue friendship

or favoritism (orif the relationship ended on a negative notehostile feeling or spirit of ill

will)toward his former paramour, it falls squarely within the category of bias prohibited by

the Code. It is impossible to believe that Judge Burdettes favoritism toward Ms. Morehead

did not influence the numerous rulings Judge Burdette made that were adverse to Mr.

McIntyre, both during his trial and during the post-conviction proceedings, even in ways Judge

4
Courts have recognized that the bias generated by a romantic relationship is capable of
lingering beyond the culmination of that relationship. For instance, in In re Bogutz & Gordon
PC v. Carondolet Health Network, No. C2001-0922, 2002 WL 33966260 (Ariz. Super. Dec. 16,
2002) (Trial Order), the court granted a plaintiffs motion for new trial where the trial judge had
engaged in a brief intimate relationship with defense counsel, even though the relationship had
terminated twenty years prior to the initial trial. The court noted that while it may be an
attenuating factor, the passage of time is not dispositive in gauging the potential for bias or
prejudice. In the present matter, far less time had elapsed between the culmination of the
relationship and the trial at issue; the relationship between Judge Burdette and Ms. Morehead
had terminated only 3-4 years prior to Mr. McIntyres trial. See Stipulation 1-5, Hooker v.
State, Case No. 04CV-2824 (Wyandotte County) (filed May 22, 2006); see also Hooker v. State,
172 P.3d 1222 (Kan. Ct. App. 2007).

11

Exh. 120
Burdette could not recognize. See, e.g., McIntyre v. State, Case No. 97C329, Hearing Tr. at 15

(Jan. 16, 1998) (denying Mr. McIntyres K.S.A. 60-1507 motion); State v. McIntyre, No.

94CR1213, Hearing Tr. at 44-47 (April 4, 1996) (denying Mr. McIntyres motion for a new

trial).

21. A fortiori, Judge Burdettes conduct most certainly created the appearance of

impropriety and partiality, in violation of Canon 1 and Rule 1.2 of the Kansas Code of Judicial

Conduct. By engaging in sexual relations with a prosecutor who would appear before him in

court, Judge Burdette necessarily destroyed public confidence in his ability to decide any

case litigated by Ms. Morehead without succumbing to improper outside influence. KANSAS

CODE OF JUDICIAL CONDUCT r. 1.2 (2009). Any reasonable observer would readily conclude

that Judge Burdette was incapable of presiding over Mr. McIntyres trial in an impartial

manner. See id. cmt. 5. Regardless of Judge Burdettes subjective state of mind or even

assuming no actual bias, his romantic involvement with Ms. Morehead, coupled with his

failure to disclose this material fact, would certainly create in reasonable minds a perception

that Judge Burdette may have engaged in conduct that reflects adversely on [his] honesty,

impartiality, temperament, or fitness to serve as a judge. KANSAS CODE OF JUDICIAL

CONDUCT r. 1.2 cmt. 5 (2009); see also In re Adams, 932 So.2d 1025, 1027 (Fla. 2006) (Even

in the absence of evidence that a romantic relationship with an attorney practicing in a judges

court has influenced the judges judgment, the judges authority necessarily suffers [because] .

. . the judge necessarily depletes the single most important source of his or her authoritythe

perception of the legal community and public that the judge is absolutely impartial in deciding

cases.).

12

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 22. While the independence, integrity, and impartiality of the judiciary are

jeopardized whenever a judge engages in a romantic relationship with any party who appears

before him, this is especially troubling in my view where, as in this case, the judges paramour

is a prosecutor. This is because the judge-prosecutor relationship is uniquely susceptible to

creating an appearance of impropriety. Even absent social or romantic involvement between

judges and prosecutors, the institutional structure of the criminal justice system fosters

relationships of cooperation and collaboration between judge and prosecutor that may interfere

with a judges ability to remain completely impartial. See Roberta K. Flowers, An Unholy

Alliance: The Ex Parte Relationship Between the Judge and the Prosecutor, 79 NEB. L. REV.

251 (2000) (noting that the constant contact and cooperation between prosecutors and trial

judges causes the relationship to take on characteristics that are different from the relationship

between the judge and other lawyers, and that [t]he creation of this interdependent

relationship may produce a team spirit between the court and prosecutor, which is counter to

the fundamental philosophy of the adversary system). Accordingly, prosecutors and judges

have a professional duty to be especially cautious in their interactions with one another, so as

to avoid any appearance of impropriety. Needless to say, participating in a sexual relationship

directly flouts this obligation.

23. Because Judge Burdettes relationship with Ms. Morehead undoubtedly created,

at the very least, an appearance of partiality and biasif not partiality and bias themselvesit

was incumbent on the judge to disclose his relationship to the parties and recuse himself from

Mr. McIntyres case. See KANSAS CODE OF JUDICIAL CONDUCT r. 2.11(A) (2009) (requiring

disqualification in any proceeding in which the judges impartiality might reasonably be

questioned); KAN. STAT. ANN. 20-311d(c)(5) (West 2014) (requiring a change of judge

13

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whenever there is cause to believe that on account of the personal bias, prejudice or interest of

the judge [a] party cannot obtain a fair and impartial trial or fair and impartial enforcement of

post-judgment remedies). Rule 2.11 provides that a judge must disqualify himself when he

has a personal bias or prejudice concerning a party or a partys lawyer. KANSAS CODE OF

JUDICIAL CONDUCT r. 2.11(A)(1) (2009). Moreover, recusal is specifically required when the

judges spouse or domestic partner, or a person within the third degree of relationship to either

of them, or the spouse of such a person is: (1) a party to the proceeding . . . ; (b) acting as a

lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be

substantially affected by the proceeding; or (d) likely to be a material witness in the

proceeding. Id. r. 2.11(A)(2). Importantly, the list of instances provided in the Rule when

recusal is mandatory is not exclusive, and the rationale for requiring recusal in cases involving

family members also applies when [an intimate sexual] relationship [is implicated] because,

under such circumstances the judges impartiality is questionable. In re Schwartz, 2011-

NMSC-019, 149 N.M. 721, 726, 255 P.3d 299, 304; see also Commonwealth v. Croken, 733

N.E.2d 1005, 1011 (Mass. 2000) (ordering investigation of non-marital intimate relationship

between a prosecutor and defense attorney and finding no appreciable difference in the

ethical implications of marital and other intimate relationships in such circumstances).

24. Had the defense been aware of the relationship between Judge Burdette and Ms.

Morehead, it certainly would have moved for Judge Burdettes disqualification, pursuant to

KAN. STAT. ANN. 20-311d (a). However, the failure on the part of both Judge Burdette and

Ms. Morehead to disclose their intimate relationship deprived Mr. McIntyres counsel of this

information to which they were entitled, denying them an important opportunity. Judge

14

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 Burdettes abdication of his legal and ethical duties to disqualify himself from Mr. McIntyres

case constitutes a violation of Canons 1 and 2 of the Kansas Code of Judicial Conduct.

25. Finally, Judge Burdette violated Canon 3 of the Kansas Code of Judicial

Conduct by undertaking an extrajudicial activitynamely a romantic affair with Ms.

Moreheadthat would amplify, rather than minimize, the risk of conflict with the obligations

of judicial office. KANSAS CODE OF JUDICIAL CONDUCT Canon 3 (2009). Judge Burdette

must have known that engaging in a sexual relationship with a prosecutor within his judicial

district would likely subject him to numerous occasions in which he would be legally and

ethically obligated to recuse himself from judicial matters before him, in violation of Rule

3.1(B).5 Id. r. 3.1(B) (prohibiting a judge from participat[ing] in activity that will lead to

frequent disqualification of the judge). Alternatively, ifas in the present matterJudge

Burdette opted not to recuse himself in cases where Ms. Morehead was representing the

government, he would be allowing his extrajudicial activities to undermine [his]

independence, integrity, or impartiality, in violation of Rule 3.1(C). Id. r. 3.1(C) (prohibiting

a judge from participat[ing] in activities that would appear to a reasonable person to

undermine the judges independence, integrity, or impartiality; or demean the judicial office).

By placing himself in this no-win situation, Judge Burdette acted in direct contravention of

each of the first three Canons of the Judicial Code of Conduct.

5
Indeed, Mr. McIntyres case was not the first matter prosecuted by Ms. Morehead over which
Judge Burdette presided following the commencement of their romantic relationship in 1990.
See Hooker v. State, 172 P.3d 1222 (Kan. Ct. App. 2007) (a criminal defendant challenged his
conviction on the ground that Judge Burdette, who had presided over his trial, was biased
because of an earlier relationship with Ms. Morehead, who was the prosecuting attorney in that
case).

15

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 26. Unsurprisingly, courts across jurisdictions have uniformly endorsed my view

that it is intolerable for judges to carry out romantic affairs with lawyers appearing before them

or other courtroom personnel.6 There are many judicial decisions recognizing that an intimate

sexual relationship between a judge and lawyer over whose case the judge presides

particularly a prosecutornot only threatens to bias the outcome of a particular matter, but

also inherently undermines the apparent integrity of the proceedings and the judicial system at

large. Courts have repeatedly emphasized that it is the appearance of improprietyregardless

of proof of actual partialitythat is dispositive in such matters. See In re Gerard, 631 N.W.2d

271, 278 (Iowa 2001) (noting that the key concern is the appearance of impropriety and

emphasizing the corrosive impact that the judges affair had upon criminal trials prosecuted by

his paramour before him); see also People v. Biddle 180 P.3d 461, 463 (Colo. 2007). There is

no question that Judge Burdettes flagrant abandonment of his ethical duties threatens to

damage the publics confidence in both the fairness of Mr. McIntyres trial and the rule of law

6
See, e.g., People v. Biddle, 180 P.3d 461 (Colo. 2007) (three-year suspension for judge who
engaged in, and later attempted to dispel unconfirmed rumors of, an affair with a deputy district
attorney who appeared before him in court); In re Adams, 932 So.2d 1025 (Fla. 2006) (public
reprimand for a judge for entering into a romantic relationship with lawyer who practiced before
him); In the Matter of Cash, 630 S.E.2d 283 (S.C. 2006) (judge removed from office after he
violated Canons 1 and 2 by engaging in intimate relationships with two court employees); In re
Gerard, 631 N.W.2d 271 (Iowa 2001) (sixty-day suspension without judicial pay for judge who
had an undisclosed intimate relationship with a county attorney who appeared before him on a
daily basis); In re Chrzanowski, 636 N.W.2d 758 (Mich. 2001) (one-year suspension without pay
for judge who had appointed an attorney with whom she was intimately involved to fifty-six cases
without disclosing the relationship); In re Flanagan, 690 A.2d 865 (Conn. 1997) (judge censured
for carrying on a three year affair with a married stenographer who regularly worked in the judges
courtroom, in violation of Canons 1 and 2A); In re Bogutz & Gordon PC v. Carondolet Health
Network, No. C2001-0922, 2002 WL 33966260 (Ariz. Super. Dec. 16, 2002) (Trial Order)
(granting plaintiffs motion for new trial where trial judge had an undisclosed brief intimate
relationship with defense counsel twenty years in the past).

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more generally. For these important reasons, I urge this Court to rectify this grave harm by

vacating Mr. McIntyres conviction and granting him the one fair trial to which he is entitled.

B. Mr. McIntyres Conviction Should be Vacated because Judge Burdettes Judicial

Misconduct Denied Mr. McIntyre his Constitutional Right to Fair Trial

27. The United States Supreme Court has made clear what I have regularly taught,

that there are circumstances in which experience teaches that the probability of actual bias on

the part of the judge or decisionmaker is too high to be constitutionally tolerable. See

Caperton v. A.T. Massey Coal Co. Inc., 556 U.S. 868, 868 (2009) (quoting Winthrow v. Larkin,

421 U.S. 35, 47 (1975)). In such instances, a judges failure to recuse himself from the case so

offends the requirements of due process that it invalidates the outcome of the proceedings. Id.

at 2259 (A fair trial in a fair tribunal is a basic requirement of due process.); Concrete Pipe

& Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 617 (1993) ([D]ue process

requires a neutral and detached judge in the first instance.). The Supreme Court established

the importance of this remedy in Tumey v. Ohio, 287 U.S. 510 (1927), when it ruled that a

judges pecuniary interest in the outcome of a criminal case constituted a due process violation.

Importantly, the Court held that evidence that the judges bias had actually affected his

decision making was unnecessary for reversal because a criminal defendants right to an

impartial judge is without qualification. Id. at 535; see also Sullivan v. Louisiana, 508 U.S.

275, 279 (1993) (noting that a trial by a biased judge will always invalidate [a defendants]

conviction and is not amenable to harmless-error analysis) (citing Tumey, 273 U.S. 510).

28. Capertonwhich reversed and remanded a judgment, holding that the judge

who had received a $3 million campaign contribution from the president and CEO of the

corporation appearing before him should have recused himself as a matter of due process

extended Tumey by applying the objective standard to financial influence, as opposed to direct

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financial interest, on the part of the judge. 556 U.S. at 885-87. Citing Tumey, the Court noted

that [e]very procedure which would offer a possible temptation to the average man as a judge

to forget the burden of proof required to convict the defendant, or which might lead him not to

hold the balance nice, clear and true between the State and the accused, denies the latter due

process of law. Id. at 868. I believe that the influence generated by a personal relationship

especially an intimate sexual relationshipis at least as powerful as that spurred by a fiscal

relationship, and, therefore, poses a substantial threat of tipping the balance towards

injustice, in addition to subjecting the judge to a wide array of disciplinary sanctionsranging

from public reprimand, see In re Adams, 932 So.2d 1025, 1028 (Fla. 2006), to suspension, see

Biddle, 180 P.3d at 463, to removal from judicial office, see In the Matter of Cash, 630 S.E.2d

283 (S.C. 2006). Judicial misconduct stemming from an improper relationship with a

prosecutor warrants the reversal of a defendants conviction and remand for retrial before an

impartial judge. See State v. Hayden, 281 Kan. 112, 124, 130 P.3d 24, 34 (2006) (remanding

for retrial because judicial misconduct denied the defendant of his right to a fair trial and

noting that while our federal and state constitutions do not entitle a criminal defendant to a

perfect trial, . . . they do entitle him or her to a fair one . . . even when that defendant stands

accused of unspeakably horrendous crimes); State v. Miller, 274 Kan. 113, 128, 49 P.3d 458,

467 (2002) (reversing the defendants conviction and remanding for retrial before a different

judge because the presiding judges misconduct deprived the defendant of a fair trial); The

Florida Bar v. Gardiner, No. SC11-2311, 2014 WL 2516419, at *4 (Fla. June 5, 2014) (noting

that a retrial was required where a judges romantic relationship with the prosecutor in a

criminal matter tainted the proceeding to such an extent that the defendants death sentence

could not stand). The Kansas Supreme Court, in reflection of the foregoing, has emphasized

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 that judicial misconduct constitutes a structural error, which is reviewable on appeal despite a

lack of a contemporaneous objection. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458, 462

(2002).

29. Judge Burdettes egregious display of misconduct in Mr. McIntyres case

evinces partiality more than sufficient to invalidate Mr. McIntyres conviction on due process

grounds. In this mattereven beyond the dictate of the Code of Judicial Conduct to uphold

and promote the independence, integrity, and impartiality of the judiciarythe requirement of

fundamental fairness and due process demanded that Judge Burdette disqualify himself from

presiding over Mr. McIntyres trial orat the very leastdisclose the relationship to the

defense. The reviewing court need not delve into the details of the record to determine whether

the relationship between Judge Burdette and Ms. Morehead actually affected the outcome of

the case (although doing so very well might reveal that this was so). Rather, under Supreme

Court precedent, the court need only find either a potential for actual bias, Caperton, 556

U.S. at 881, or the appearance of bias. Commonwealth Coatings Corp. v. Continental Co.,

393 U.S. 145, 150 (1968). Because I conclude that the presence of both is undeniable, I

importune this court to remedy the injustice that marred Mr. McIntyres trial by vacating his

conviction and setting the case for retrial before an unbiased judge.

III. Assistant District Attorney Terra Morehead Deprived Defendant

Lamonte McIntyre of a Fair Trial By Violating Her Ethical Duties as
Prosecutor

30. One of the most venerated and enduring principles underpinning our criminal

justice system is that the prosecutors interest . . . in a criminal prosecution is not that [she]

shall win a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88

(1935). The Supreme Court has long recognized that a prosecutor serves not only as an

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advocate for an ordinary party but also play[s] a special role . . . in the search for truth in

criminal trials. Strickler v. Greene, 527 U.S. 263, 281 (1999). She has as much a duty to

refrain from improper methods calculated to produce wrongful conviction as . . . [she does] to

use every legitimate means to bring about a just one. Berger, 295 U.S. at 88.

31. Based on this fundamental principal, the ABA Model Rules of Professional

Conduct, as adopted by the Kansas Supreme Court, establish special ethical standards that

govern the conduct of prosecutors. See, e.g., MODEL RULE PROFL CONDUCT r. 3.8 (2013).

These rules were promulgated under the rationale that a prosecutor has the responsibility of a

minister of justice and not simply that of an advocate. Id. cmt. 1. Prosecutors therefore have

specific obligations to see that the defendant is accorded procedural justice and that guilt is

decided upon the basis of sufficient evidence. Id.

32. The unethical nature of Lamonte McIntyres trial actually extends even beyond

the unfair bias stemming from the improper relationship between Judge Burdette and ADA

Terra Morehead. The injustice of the proceedings was compounded by ADA Moreheads

commission of a series of reprehensible acts that blatantly breached her ethical duties both as

prosecutor and as an advocate before the court. ADA Morehead concealed from the defendant

her prior relationship with Judge Burdette and the resulting conflicts of interest that afflicted

both her and the judge. She illegally tampered with witnesses, and she withheld materially

exculpatory information. These violations of ADA Moreheads ethical duties eliminated any

semblance of fairness in Mr. McIntyres trial. I conclude that, based on my understanding of

these requirements, this Court should grant Mr. McIntyre relief from a conviction that was

deeply unjust.

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 A. ADA Moreheads Failure to Disclose Her Prior Romantic Relationship with Judge
Burdette Constituted an Undeniable Conflict of Interest and Required Disclosure to
both the Court and Defense Counsel

33. Under Rules 1.7 and 8.4 of the Kansas Rules of Professional Conduct, ADA

Morehead had an ethical obligation to disclose her previous romantic relationship with Judge

Burdette. Rule 1.7 requires lawyers to identify and disclose conflicts of interest. KANSAS

RULES OF PROFL CONDUCT r. 1.7 (2007). A conflict arises when a lawyer faces interests and

responsibilities that would materially limit his or her capacity to represent a client. See

KANSAS RULES OF PROFL CONDUCT r. 1.7(a)1-2 (emphasis added) (2007); see also id. cmt. 8

([A] conflict of interest exists if there is a significant risk that a lawyers ability to consider,

recommend, or carry out an appropriate course of action for the client will be materially

limited as a result of the lawyers other responsibilities or interests.). The Rule, as correctly

interpreted by courts, is an objective one and does not depend on a lawyers subjective belief

about his ability to remain impartial. See In re O'Brien, 26 A.3d 203, 209 (Del. 2011); Matter

of Anonymous Member of S. Carolina Bar, 432 S.E.2d 467, 468 (S.C. 1993) (describing the

standard employed by Rule 1.7 as an objective test). Upon discovering a conflict of

interest, lawyers are required to disclose that conflict to the client and receive their informed

consent. See KANSAS RULES OF PROFL CONDUCT r. 1.7(b)(4) (2007).

34. Within the criminal context, the necessity for identifying and disclosing

conflicts of interest is of fundamental importance. Undisclosed conflicts of interests may result

in a miscarriage of justice that violates the defendants right to a fair and impartial tribunal.

See In re Murchison, 349 U.S. 133, 136 (1955) (A fair trial in a fair tribunal is a basic

requirement of due process.). Our adversarial process is grounded upon the basic notion that

both the prosecution and the defense are litigating before a neutral decision-maker. See

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Roberta K. Flowers, supra 19, at 261 (The adversary process assumes that both sides will

present their case to a neutral, passive tribunal.); see also Anne Bowen Poulin, Conflicts of

Interest in Criminal Cases: Should the Prosecution Have A Duty to Disclose?, 47 AM. CRIM. L.

REV. 1135, 1136 (2010) (For our criminal justice system to function properly both the

prosecution and defense must be free to provide robust representation uninhibited by conflicts

of interest.).

35. Courts have routinely urged prosecutors to disclose conflicts of interest. See

United States v. Migliaccio, 34 F.3d 1517, 1528 (10th Cir. 1994) (Where the government is

aware of a conflict of interest, it has a duty to bring it to the courts attention.); United States

v. Tatum, 943 F.2d 370, 380 (4th Cir. 1991) (When a conflict situation becomes apparent to

the government, the government has a duty to bring the issue to the courts attention.); United

States v. Cruz, 982 F. Supp. 946, 950 (S.D.N.Y. 1997) (The Government has an obligation to

bring conflicts to the Courts attention at the earliest possible moment.).

36. A prosecutors duty to disclose conflicts derives from her responsibility as an

officer of the court and her attendant obligation to seek justice. See KANSAS RULES OF PROFL

CONDUCT r. 3.8 cmt. 1 (2007) (A prosecutor has the responsibility of a minister of justice and

not simply that of an advocate.); see also ABA PROSECUTION FUNCTION STANDARD 3-1.2(b)

(1993) (The prosecutor is an administrator of justice, an advocate, and an officer of the court;

the prosecutor must exercise sound discretion in the performance of his or her functions.).

Importantly, the duty arises whenever the prosecutors personal interest or that of another

conflicts with those of . . . [her] clientoften considered to be the public. See Susan W.

Brenner & James Geoffrey Durham, Towards Resolving Prosecutor Conflicts of Interest, 6

GEO. J. LEGAL ETHICS 415, 417-18 (1993) (noting that prosecutors can have what are called

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system conflicts, conflicts of interest inherent in their distinct responsibilities, such as the

necessity of being an advocate[] and the ethical requirement of being an administrator of

justice); ABA STANDARDS FOR CRIMINAL JUSTICE 3-1.3 cmt. (3d ed. 1993) (A prosecutors

client is the people who live in the prosecutors jurisdiction. Since all lawyers have a fiduciary

duty to their clients, the professional judgment of the prosecutor must be exercised, within the

bounds of the law, solely for the benefit of the clientthe peoplefree of any compromising

influences or loyalties.).

37. The prosecutors duty to disclose conflicts of interest is also critical in light of

the extraordinary resources and powers that she possesses. Prosecutors command out-sized

resources matched by few; simultaneously they wield astonishing criminal powersfar

beyond those of the private attorney. See Robert H. Jackson, The Federal Prosecutor, 31 AM.

INST. CRIM. L. & CRIMINOLOGY 3, 3 (1940-1941) (A prosecutor can order arrests, present

cases to the grand jury in secret session, and on the basis of his one-sided presentation of the

facts, can cause the citizen to be indicted and held for trial.). These powers carry immense

consequences and require that the prosecutor maintain an air of impartiality and restraint.

People v. Vasquez, 137 P.3d 199 (Cal. 2006) (quoting People v. Superior Court (Greer), 561

P.2d 1164, 1172 (1977)) ([I]t is precisely because the prosecutor enjoys such broad discretion

that the public he serves and those he accuses may justifiably demand that he perform his

functions with the highest degree of integrity and impartiality.).

38. ADA Terra Morehead violated one of her most essential ethical duties when she

failed to disclose her past romantic relationship with Judge Burdette. A romantic relationship

between a judge and a prosecutorrecent, past, or presentcreates an undeniable conflict of

interest. As explained in Part II, supra, Judge Burdette had an unequivocal duty to, at the very

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least, disclose this conflict of interest to the defense. But the burden of disclosure extended

equally and independently to ADA Morehead, who likewise had a clear conflict of interest

stemming from her unique role as a representative of the sovereign and of the public interest.

See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935) (The United States Attorney is the

representative not of an ordinary party to a controversy, but of a sovereignty whose obligation

to govern impartially is as compelling as its obligation to govern at all.); United States v.

Castro-Gaxiola, 60 F. Appx 96, 97 (9th Cir. 2003) (quoting Com. of Northern Mariana

Islands v. Bowie, 236 F.3d 1083, 1089 (9th Cir. 2001)) (The prosecuting attorney represents a

sovereign whose obligation is to govern impartially and whose interest in a particular case is

not necessarily to win, but to do justice. It is the sworn duty of the prosecutor to assure that the

defendant has a fair and impartial trial.). As an advocate for the public, ADA Morehead had

an affirmative duty to disclose her conflict of interest in order to safeguard the actual and

apparent fairness of the judicial proceedings and maintain the publics confidence in the

legitimacy of the criminal justice system.

39. ADA Morehead breached this duty when she allowed herself to prosecute Mr.

McIntyre without disclosing her conflict of interest. Her prior romantic relationship with

Judge Burdette unquestionably eviscerated the public appearance of fairness that she had an

obligation to uphold. As discussed in Part II, supra, the romantic relationship created, at the

very least, an appearance of impropriety, if not impropriety itself, thereby calling into question

the fairness of the entire proceedings. As a result, ADA Morehead surely should have

disclosed her prior relationship with Judge Burdette. In failing to do so, she exposed herself to

a conflict of interest in violation of Rule 1.7.

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 40. Not only should ADA Morehead have disclosed this conflict, she was also

ethically obliged to withdraw from the case altogether. Under Rule 1.16, lawyers must

withdraw if representation will result in [a] violation of the rules of professional conduct or

other law. KANSAS RULES PROFL CONDUCT r. 1.16(a)(1) (2007). The fact that ADA

Morehead chose not to withdraw made it all the more essential for her to disclose her conflict

so that the defense could have an opportunity to move for her recusal or that of Judge Burdette.

ADA Moreheads failure to either disclose this information or to withdraw from the case

deprived Mr. McIntyre of a fair trial.

41. In addition to violating Rule 1.7, ADA Moreheads failure to disclose her

romantic relationship to the court and opposing counsel also violated Rule 8.4 of the Kansas

Rules of Professional Conduct. Rule 8.4(d) prohibits conduct that is prejudicial to the

administration of justice. KANSAS RULES OF PROFL CONDUCT r. 8.4(d) (2007). Because Ms.

Moreheads suppression of her relationship with Judge Burdette compromised the fairness of

the proceedings, she no doubt contributed to the prejudicing of the administration of justice in

Mr. McIntyres case. Moreover, Rule 8.4(f) specifically prohibits knowingly assist[ing] a

judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or

other law. Id. r. 8.4(f). By concealing the relationship, ADA Morehead assisted Judge

Burdette in violating his own ethical obligations to avoid impropriety and its appearance

thereof. Courts routinely condemn romantic relationships with judges and the prosecutors that

appear before them, see Part II, supra, and they have grown increasingly zealous in their

sanctioning of prosecutors, in addition to judges, that participate in such relationships. See

e.g., In re Dean, 129 P.3d 943 (Ariz. 2006) (en banc) (agreeing with the Disciplinary

Committee that the sanction of the prosecutor for failing to disclose and lying about romantic

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relationship with presiding judge was justified). ADA Morehead knew or should have known

that the judges failure to disclose the relationship or withdraw from the case constituted a

violation of the Kansas Code of Judicial Conduct. That she aided him in committing this

ethical breach is thus in clear violation of her own duties under Rule 8.4(f).

B. ADA Terra Moreheads Coercion of Witness Niko Quinn Amounts to Prosecutorial

Misconduct, in Violation of Statutory law, the U.S. Constitution, and the Kansas
Rules of Professional Conduct

42. In addition to concealing a relationship that infused Mr. McIntyres entire trial

with implicit bias, ADA Morehead also engaged in overt acts of misconduct at various stages

of the proceedings. Perhaps the most egregious instance of this misbehavior was coercion of a

key witness into giving false testimony before the court. ADA Moreheads conduct violated

state statutory law regarding the intimidation of witnesses and the subornation of perjury, the

federal due process clause of the Fourteenth Amendment and Rules 3.3, 3.4 and 8.4 of the

Kansas Rules of Professional Conduct.

43. Mr. McIntyres conviction hinged almost entirely on the statements of two

eyewitnesses. One of the eyewitnesses, Niko Quinn, had originally identified Lamonte

McIntyre as the shooter in a photo array, but upon seeing Mr. McIntyre in person realized that

he absolutely could not be the shooter. Niko Quinn Aff. 21, June 30, 2014. In her affidavit,

Niko Quinn explains that Mr. McIntyre did not possess many of the physical characteristics of

the shooter, specifically referring to Mr. McIntyres ears and height. Id. She subsequently

approached ADA Morehead with this information and twice notified her, prior to testifying,

that Mr. McIntyre was not the shooter she had seen. Id. Nonetheless, at trial, Niko Quinn

testified against Mr. McIntyre, falsely identifying him as the shooter. Niko Quinn avers that

she perjured herself at trial because Detective Golubski had pressured her and because ADA

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Morehead had threatened her with powerful sanctions if she refused. Niko Quinn Aff. 20-

22. Specifically, when Ms. Quinn informed ADA Morehead that Mr. McIntyre was not the

shooter, ADA Morehead warned her that she could be held in contempt and go to jail and

have her children taken away from her if she did not testify against Mr. McIntyre. Id. Under

these threats, Niko Quinn states that she allowed ADA Morehead to lead her through her

testimony and left the courthouse very upset. Id.

44. ADA Moreheads conduct towards Niko Quinn unquestionably qualifies as

prosecutorial misconduct. First, Kansas courts have repeatedly held that prosecutorial

intimidation of witnesses constitutes misconduct so egregious that it denies a defendant his

constitutional right to a fair trial. For example, in State v. Finley a defendant charged with

felony murder and manufacture of methamphetamine arising out of a house fire alleged that the

prosecution had prevented his girlfriend from testifying by threatening her with charges of

felony murder if she testified on his behalf. State v. Finley, 998 P.2d 95, 101 (Kan. 2000). The

court held the prosecutions acts were not harmless because the witnesss testimony was so

crucial to the defense that it could have exonerated the defendant had it been introduced to the

jury. Id. at 104. While there are factual differences between Finley and Mr. McIntyres case

namely that Finley involved the complete prevention of testimony by a key defense witness

the courts holding that intimidation of a witness to preclude exculpatory testimony amounts to

prosecutorial misconduct clearly applies to the present case. As in Finley, ADA Morehead

threatened a witness into concealing from the court materially exculpatory evidence regarding

the defendant. But her conduct was arguably even more egregious than that of the prosecutor

in Finley, for while the Finley prosecutor dissuaded a witness from testifying, ADA Morehead

actually coerced the witness into falsely testifying on a key issue so as to directly mislead the

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jury. Kansas courts have rightly recognized that where, as in this case, prosecutors commit

misconduct that amounts to a denial of a defendants Due Process rights, the conviction must

be reversed. See State v. Sperry, 978 P.2d 933, 948 (Kan. 1999). Thus, because ADA

Morehead aided a witness in perjuring herself on the stand, Mr. McIntyres conviction should

be reversed under Kansas law.

45. ADA Moreheads subornation of perjury constitutes a due process violation

under the Fourteenth Amendment. U.S. Const. amend. XIV, 1 (nor shall any state deprive

any person of life, liberty, or property, without due process of law). The due process clause

ensures that criminal defendants are subject to fundamentally fair procedures. As it is patently

unfair for a prosecutor to knowingly and intentionally present perjured testimony to a jury,

ADA Moreheads misconduct violated Mr. McIntyres constitutional right to a fair trial. In

United States v. LaPage, the Ninth Circuit held that a prosecutors knowing use of perjured

testimony violated the due process clause of the Fourteenth Amendment and did not qualify as

harmless error. United States v. LaPage, 231 F.3d 488, 491 (9th Cir. 2000). The court spoke

strongly against prosecutorial subornation of perjury, stating that [a]ll perjury pollutes a trial,

making it hard for jurors to see the truth; no lawyer, prosecutor, or defense counsel, civil or

criminal, may knowingly present lies to a jury and then sit idly by while opposing counsel

struggles to contain this pollution of the trial, and that prosecutors have a special duty to

refrain from improper methods calculated to produce wrongful conviction. Id. at 492.

46. ADA Moreheads subornation of perjury provides solid ground for the Court to

grant Mr. McIntyre a retrial. In Napue v. Illinois, the Supreme Court held that a conviction

obtained through the use of false evidence, known to be such by representatives of the State,

must fall under the Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269 (1959).

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Similarly, in LaPage, the Ninth Circuit held that, [b]ecause use of known lies to obtain

conviction violates due process of law, such a conviction must be reversed unless false

testimony was harmless beyond reasonable doubt; conviction must be reversed if there is any

reasonable likelihood that false testimony could have affected the judgment of the jury.

LaPage, 231 F.3d at 489. Given that the State built its case on the two eyewitness accounts,

there is no possibility that the subornation of Niko Quinns perjury can be found harmless;

rather, there is a substantial likelihood that the perjured testimony affected the judgment of the

jury to the detriment of Mr. McIntyre. Accordingly, I urge the Court to find that, under the

Fourteenth Amendment, Mr. McIntyres conviction must fall. Napue, 360 U.S. at 269.

47. ADA Moreheads subornation of perjury is also in violation of federal statutory

law. By threatening Niko Quinn, ADA Morehead directly influenced Niko Quinn to perjure

herself, in violation of Title 18 U.S.C. 1622 (1994), which provides that [w]hoever procures

another to commit any perjury is guilty of subornation of perjury, and shall be fined under this

title or imprisoned not more than five years, or both. By suborning perjury, ADA Morehead

also violated Rule 8.4(b) by perpetrating a crime that reflects adversely on her honesty and

trustworthiness as a lawyer. KANSAS RULES OF PROFESSIONAL CONDUCT r. 8.4(b) (2007).

48. That ADA Moreheads acts of coercion rendered Mr. McIntyres trial

fundamentally unjust is highlighted by the fact that, in acting so, ADA Morehead breached her

ethical duties under the Kansas Rules of Professional Conduct, which were designed

specifically to protect the integrity of trial proceedings. Rule 3.4(b) states that a lawyer shall

not falsify evidence, counsel, or assist a witness to testify falsely, or offer an inducement to a

witness that is prohibited by law. KANSAS RULES OF PROFL CONDUCT r. 3.4(b) (2007). The

purpose of this Rule is to ensure that the fairness of the adversarial process is not diminished

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by improper tampering with witnesses. By threatening Niko Quinn with losing her children

and being placed in jail if she did not provide testimony that she believed to be false, ADA

Morehead clearly sought to assist a witness in providing false testimony, in violation of Rule

3.4(b). Indeed, even after being told twice by Niko Quinn that she no longer believed that Mr.

McIntyre was the perpetrator, ADA Morehead proceeded to lead Niko Quinn through her false

testimony. In this way, ADA Morehead exceeded her role as prosecutor and assumed an

unauthorized position in which she would decide the content of Niko Quinns testimony before

the court.

49. Additionally, ADA Morehead breached the duties of candor imposed by Rule

3.3(3) of the Kansas Rules of Professional Conduct, which provides that a lawyer shall not

offer evidence that the lawyer knows to be false. KANSAS RULES OF PROFL CONDUCT r.

3.3(3) (2007). That duty is meant to ensure that lawyers, as officers of the court, avoid

conduct that undermines the integrity of the adjudicative process. Id. cmt. 1. If the lawyer

learns that a witness has offered false information before the court, she shall take reasonable

remedial measures, including, if necessary, disclosure to the tribunal. Id. r. 3.3(3). Instead of

taking remedial measures, however, ADA Morehead we are told knowingly compelled Niko

Quinn to lie on the stand by giving testimony that directly contradicted what the witness had

previously stated to the prosecutor. By coercing a witness into giving false testimony during

trial, ADA Morehead violated one of her most important duties as an advocate before the court.

These shockingly dishonest acts irreparably compromised the integrity of the trial proceedings

to the severe detriment of Mr. McIntyre.

50. ADA Moreheads conduct also violated Rule 8.4 of the Kansas Rules of

Professional Conduct. Under Rule 8.4(c), it is professional misconduct to engage in conduct

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involving dishonesty, fraud, deceit or misrepresentation. KANSAS RULES OF PROFL CONDUCT

r. 8.4(c) (2013). Rule 8.4(d) adds that it is professional misconduct to, engage in conduct that

is prejudicial to the administration of justice. Id. r. 8.4(d). ADA Moreheads conduct was

both deceitful and fraudulent insofar as she lied to Ms. Quinn about the possible contempt

charges. Niko Quinns attempts to correct her previous statement were not intended to subvert

court orders or delay or negatively impact the trial proceedings. Nor did Ms. Quinn ever refuse

to testify. In fact, nothing in the record suggests that ADA Morehead had any reasonable

grounds for believing that Niko Quinn could be held in contempt of court. ADA Moreheads

baseless threats that Niko Quinn could go to jail and have her children taken away were thus

nothing more than a blatant attempt to deceive and coerce Niko Quinn into testifying that Mr.

McIntyre was the perpetrator.

51. ADA Moreheads conduct can also be viewed as a violation of Rule 8.4(b) of

the Kansas Rules of Professional Conduct, which declares that it is misconduct for an attorney

to commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or

fitness as a lawyer in other respects. Id. r. 8.4(b). By suggesting to Niko Quinn that she could

be held in contempt, go to jail and lose her children if she recanted her statement and refused to

identify Mr. McIntyre as the perpetrator, ADA Morehead violated K.S.A. 21-5909 (2012),

which makes the intimidation of a witness or victim a Class B person misdemeanor. The

statute defines witness intimidation as:

knowingly and maliciously preventing or dissuading, or attempting to

prevent or dissuade . . . any witness, victim or person acting on behalf of a
victim from . . . arresting or causing or seeking the arrest of any person in
connection with the victimization of a victim.

Id. It is my firm opinion that ADA Moreheads commission of this criminal act reflects

adversely on [her] honesty, trustworthiness, or fitness as an officer of the court.

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 52. Given that the States case turned on whether Mr. McIntyre could be identified

as the perpetrator, Niko Quinns testimony undeniably had a highly prejudicial effect on Mr.

McIntyres case. ADA Moreheads unlawful threats prevented and dissuaded Niko Quinn

from providing testimony that could have exonerated Mr. McIntyre while prompting an

investigation to discover and arrest another individual in connection with the shooting. In fact,

in her affidavit, Niko Quinn states that she later suspected another individual who went by the

name of Monster of the killing but that no follow-up was ever made by Detective Golubski.

Niko Quinn Aff. 28, June 30, 2014. There is therefore no question that ADA Moreheads

misconduct constitutes an affront to the integrity of the administration of justice that the

Kansas Rules of Professional Conduct seek to protect.

C. ADA Moreheads Withholding of Exculpatory Information Violated Her Ethical

Disclosure Obligations and Prejudiced Mr. McIntyre

53. Beyond the ethical breaches stemming from ADA Moreheads threatening a

witness, I conclude that ADA Morehead also violated her ethical disclosure duties under Brady

v. Maryland, 373 U.S. 83 (1963), and Rule 3.8(d) of the Kansas Rules of Professional Conduct

when she suppressed Niko Quinns statements and other exculpatory evidence from the

defense. In Brady, the Supreme Court unequivocally held that a prosecutor violates a

defendants constitutional due process rights when she withholds favorable evidence material

to the defendants guilt or punishment. Id. at 87. Consistent with the Supreme Courts holding

in Brady, Kansas courts have established a concurrent ethical duty that obligates prosecutors to

disclose information favorable to the defense. See, e.g., State v. Gonzales, 290 Kan. 747, 766

(2010). Under Rule 3.8(d), prosecutors shall make timely disclosure to the defense of all

evidence or information known to the prosecutor that tends to negate the guilt of the accused or

mitigates the offense . . . . KANSAS RULES OF PROFESSIONAL CONDUCT r. 3.8(d) (2007). This

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Rule exactly replicates Rule 3.8(d) of the ABA Model Rules of Professional Conduct, which

has been adopted in some variation by almost all states in recognition of the importance of

guaranteeing defendants fair access to exculpatory information. MODEL RULES PROFL

CONDUCT r. 3.8(d) (Am. Bar Assn 2013).

54. The incorporation of Rule 3.8(d) into the Kansas Rules of Professional Conduct

imposes a mandatory standard of conduct on Kansas prosecutors, compelling them to disclose

to the defense any exculpatory evidence within their possession in order to fulfill this moral

and legal imperative. Therefore, independent of her constitutional obligations under Brady,

ADA Morehead openly breached her professional ethical responsibilities under Rule 3.8(d)

when she knowingly withheld crucial exculpatory information from Mr. McIntyre during his

trial for double homicide.

55. Although Rule 3.8(d) disclosure duties are independent of any constitutional

requirement, the Rules underlying rationale echoes the Supreme Courts reasoning in Brady.

Rule 3.8 specifically governs the conduct of prosecutors and seeks to hold them to a

heightened standard befitting their role as ministers of justice. See MODEL RULES PROFL

CONDUCT r. 3.8 cmt. 1 (Am. Bar Assn 2013); KANSAS RULES OF PROFESSIONAL CONDUCT r.

3.8 cmt. 1 (2007). The ethical duties required by Rule 3.8 are meant to ensure that the

defendant receives procedural justice and that [his] guilt is decided upon the basis of

sufficient evidence. Id. The drafters of Rule 3.8(d) clearly recognized that prosecutorial

misconduct in the form of withholding exculpatory evidence denies defendants the procedural

justice to which they are entitled. Significantly, Rule 3.8(d) is meant to serve as a special

precaution[] to prevent the conviction of innocent persons. ABA Comm. on Ethics & Profl

Responsibility, Formal Op. 09-454 (2009). In adopting Rule 3.8(d), the Kansas Supreme Court

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surely intended to compel a level of disclosure from prosecutors that would mitigate the risk of

wrongful convictions and guarantee defendants a fair and just trial. When ADA Morehead

flouted her Rule 3.8(d) duties, she effectively robbed Mr. McIntyre of his right to a fair trial

and condemned him to punishment for an unjust conviction.

56. The Supreme Court has stated that Rule 3.8(d) requires similar if not broader

disclosures from prosecutors than those mandated under Brady. In Brady, the Court held that

prosecutors are required to provide the defense with favorable evidence that is material to the

defendants guilt or punishment. Brady, 373 U.S. at 87. Evidence is deemed material to the

defense if there is a reasonable probability that, had the evidence been disclosed, the result of

the proceeding would have been different. Cone v. Bell, 556 U.S. 449, 469-70 (2009). The

Court has further explained that reasonable probability of a different result does not mean

that a different verdict would have been more likely than not, but rather, that the evidentiary

suppression undermines confidence in the outcome of the trial. Kyles v. Whitley, 514 U.S.

419, 434 (1995). On its face, Rule 3.8(d) does not impose similar materiality restrictions;

rather, it requires that the prosecutor turn over all evidence that tends to negate the

defendants guilt. KANSAS RULES OF PROFESSIONAL CONDUCT r. 3.8 (2007) (emphasis added).

The Court has noted that although [Brady] only mandates the disclosure of material evidence,

the obligation to disclose evidence favorable to the defense may arise more broadly under a

prosecutors ethical or statutory obligations. Cone, 556, U.S. at 470 n. 15. The ABA

Standing Committee on Ethics and Professional Responsibility has similarly adopted the

position that prosecutors ethical duties [do] not implicitly include the materiality limitation

recognized in the constitutional case law. Op. 09-454 (2009).

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 57. ADA Morehead suppressed evidence that was so crucial to the defense that

regardless of whether the Court reads a materiality requirement into Rule 3.8(d)it is beyond

dispute that she violated Kansass Rule 3.8(d). Indeed, her concealment of Niko Quinns

exculpatory statements alone might amount to a severe breach of her ethical duties. In a case

that hinged entirely on the testimony of two eyewitnesses, ADA Morehead never disclosed to

the defense that one of those witnesses had notified her prior to testifying that Mr. McIntyre

was not the shooter she had witnessed commit the double homicide. Niko Quinn Aff. 21,

June 30, 2014; Gary Long Aff. 13, April 24, 2015. As noted above, Niko Quinn not only

informed ADA Morehead of Mr. McIntyres innocence, but she also described in detail the

physical differences between McIntyre and the true perpetrator. Id. Niko Quinns firm

rejections of Mr. McIntyres involvement in the crime as well as her statements identifying

specific physical dissimilarities between Mr. McIntyre and the shooter indisputably serve to

negate Mr. McIntyres guilt. By withholding these statements from the defendant, the

prosecutor unfairly deprived Mr. McIntyre of evidence that would have greatly strengthened

his defense. Long Aff. 13-14.

58. While ADA Moreheads suppression of Niko Quinns exculpatory statements

alone likely amounts to a breach of her duties under Brady and Rule 3.8(d), ADA Morehead

certainly violated those duties when she concealed the fact that she had used threats to coerce

Niko Quinn into testifying that Mr. McIntyre was the shooter. See Niko Quinn Aff. 21-22.

By intentionally concealing her coercive tactics, ADA Morehead directly contravened her

ethical duties to disclose to the defense exculpatory impeachment evidence. That Niko Quinn

was testifying under duress to a fact that she had previously disclaimed is strong impeachment

evidence. As the Court recognized in Smith v. Cain, where an eyewitnesss testimony is the

35

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only evidence linking a defendant to a crime, evidence that could impeach that witness is

plainly material. Smith, 132 S. Ct. 627, 629 (2012). In this case, Niko Quinn served as one

of only two eyewitnesses, and the prosecution had no other evidence beyond the accounts of

those two witnesses. The jury undoubtedly accorded great weight to Niko Quinns testimony;

had the defense been able to impeach her, the outcome of the trial would surely have been

thrown into doubt. Therefore, the evidence ADA Morehead suppressed was clearly material

under Brady and thus qualified as information that Rule 3.8(d) required a prosecutor to

disclose. ADA Moreheads withholding of this information was in flagrant violation of her

professional disclosure duties and rendered the trial proceedings manifestly unjust for Mr.

McIntyre.

59. In addition to her suppression of exculpatory information regarding Niko Quinn,

ADA Morehead breached her ethical disclosure obligations yet again when she failed to inform

the defense that a third eyewitness, who never testified at trial, had unambiguously informed

her that McIntyre was not the shooter. Josephine Quinn, Niko Quinns mother, had originally

been subpoenaed to testify in Mr. McIntyres trial. But upon seeing Mr. McIntyre in the

courtroom, she, too, recognized that he was not the man she had witnessed commit the crime.

Josephine Quinn Aff. 5, Oct. 17, 1997. Echoing Niko Quinns statements, Josephine Quinn

stated that Mr. McIntyre was taller than and possessed different complexion and facial features

from the true shooter. Id. Rather than disclosing Josephine Quinns statements to the defense

as required under Rule 3.8(d), ADA Morehead dismissed her statements and did not ask her to

testify during the trial. Id. ADA Morehead never informed the defendant that Josephine Quinn

had come forward and stated that Lamonte McIntyre was not the shooter. Long Aff. 13-14,

April 24, 2015. Had defense counsel known of these statements, he would have moved to

36

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dismiss the case. Alternatively, he would have presented her testimony to the jury, and also

would have impeached Niko Quinn with her pretrial, exculpatory statements to the prosecutor.

Long Aff. 13-14. Given the paucity of evidence linking Mr. McIntyre to the crime,

Josephine Quinns and Niko Quinns exculpatory statements would almost certainly have had a

dramatic impact on the jurys decision on McIntyres guilt. As a result, I conclude that ADA

Moreheads failure to disclose these statements to the defense was therefore an unjustifiable

breach of her ethical duties.

60. In Kyles, the Supreme Court held that suppressed exculpatory evidence should

be examined collectively to determine whether the evidence is material under Brady. 514 U.S.

at 436. Here, each piece of evidence concealed by ADA Morehead was so central to the case

that each would likely be considered material, even when viewed on an item-by-item basis.

But taken together, the pieces of suppressed evidence unquestionably undermine[] confidence

in the outcome of the trial. Id. at 434. In fact, the prosecutions case was so lacking in

evidence that defense counsel would certainly have made a motion to dismiss the case had he

known that two eyewitnesses had affirmed Mr. McIntyres innocence. Long Aff. 14.

Because the suppressed evidence constitutes materially exculpatory information under even the

most restrictive reading of Brady, it falls squarely within the type of evidence that Rule 3.8(d)

mandates prosecutors to disclose to the defense.

61. In failing to disclose the materially exculpatory statements made by Niko Quinn

and Josephine Quinn, ADA Morehead knowingly and purposefully breached her duties as a

minister of justice. She deployed improper methods to obtain an unfair conviction that rested

upon false and insufficient evidence, directly infringing on the principles that underlie Rule

3.8(d). ADA Morehead surely should be disciplined for such blatant misconduct. Because

37

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 ADA Moreheads reprehensible actions directly violated the bedrock of criminal justice and

denied Mr. McIntyre the impartial trial to which he was entitled, I conclude that the Court

should now grant him a new opportunity to present the evidence that was unjustly withheld

from him. Only then will Mr. McIntyre have received the fair and just trial that he deserves.

IV. Conclusion

62. By virtue of their position as officers and representatives of the criminal justice

system, judges and prosecutors have affirmative duties to ensure that defendants receive the

fair trial to which they are entitled. Without both a neutral judge and a just prosecutor, it is

impossible for a criminal trial to satisfy the requirements of due process, as guaranteed by the

Fourteenth Amendment. In the present matter, the numerous ethical violations committed by

Judge Burdette and ADA Moreheadnamely, (1) the failure of both actors to recuse

themselves or disclose their previous sexual relationship, (2) ADA Moreheads subornation of

perjury by a key witness, and (3) ADA Moreheads failure to disclose materially exculpatory

evidenceundeniably tainted the proceedings with both tacit bias and patent injustice. In

order to rectify these egregious Constitutional violations, I urge this Court to vacate Mr.

McIntyres flawed conviction and set this case for retrial before an impartial tribunal

prosecuted by a rule-abiding and unbiased officer of the court.

_________________________________
Lawrence J. Fox
June 23, 2016
New Haven, CT

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 LAWRENCE J. FOX
One Logan Square, Suite 2000
Philadelphia, PA 19103-6996

Partner, Drinker Biddle & Reath (since 1976), specializing in corporate and securities
litigation; Managing Partner - 1987-1989, 1991-1998; Former Chairman, Professional
Responsibility Committee.

Professional Organizations
Member, ABA House of Delegates, 1998-2001; 2002-present
Member, ABA Commission on the Evaluation of the Rules of Professional Conduct
(Ethics 2000) 1997-2002
Chair, ABA Post Conviction Death Penalty Representation Project 1996-2004
Chair, Section Officers Conference, American Bar Association 1996-1998
Chair, ABA Standing Committee on Ethics and Professional Responsibility 1996-
1997; Member, 1991-1996
Chair, ABA Litigation Section, 1995-96
Chair, ABA Day in Washington 1997-2001
Member, ABA Law Firm Pro Bono Advisory Committee, 1997-2000
Chair, National Conference on Professional Responsibility, 1996, 1997, 1998
Member, Executive Committee of the Section Officers Conference, 1994-1996
Member, ABA Center for Professional Responsibility Publications Board, 1994-1996;
2005-present
Member, ABA Working Group on Lawyers Representation of Regulated Clients,
1992-1994
Member, ABA Business Section Task Force on Joint and Several Liability Under Rule
10b-5, 1992-1997
Member, ABA Task Force on Judicial Removal - 1992-1994
Member, Council, Section of Litigation, American Bar Association 1983-1991; 1992-
1999; 2002-present
Chair, Section of Litigation Fall Meeting 1990
Budget Officer, Section of Litigation, American Bar Association 1983-1988
Member, ABA Section of Litigation, Task Force on Ancillary Business, 1987-1991.
Member, American Law Institute, 1989-present
Special Adviser to ALI Restatement of the Law Governing Lawyers 1988-2000
Member, Board of Editors, ABA/BNA Manual on Lawyers Professional Conduct
1988-1991
Member, Philadelphia Bar Association Professional Responsibility Committee, 1978-
present
Member, House of Delegates, Pennsylvania Bar Association 1988-1991, 1992-2006.
Member, Board of Editors, CPR Alternatives 1991-present
Member, ABA Section of Litigation, Legal Services Project, 1997-present.
Ide Commission (2006-2010)
ABA Death Penalty Moratorium Project (2006-2010)
Member of the Board of Connecticut Bar Foundation, 2011-present

Exh. 120
Teaching
Lecturer on Ethics at Moscow State University, Moscow, Russia, April-May 2014
George W. and Sadella D. Crawford Visiting Lecturer in Law, Yale Law School,
2009-present
Supervising Lawyer at the Ethics Bureau at Yale Law School 2011-present
Lecturer on Law, Harvard Law School, 2007-2010
I. Grant Irey, Jr., Adjunct Professor, University of Pennsylvania Law School, Fall
2000-2008
Visiting Professor, Cornell Law School, Fall 1999
Instructor, 1986-1992, University of Pennsylvania Law School, The Legal Profession
and Professional Responsibility
Lectures at the law schools of Case Western Reserve University, Cornell University,
Dickinson Penn State, Duke University, Emory University, Fordham University,
George Washington University, Georgetown University, Hofstra University, Mercer
University, Northwestern University, Rutgers University (Camden), Seton Hall
University, South Texas University, St. Johns University, Stetson University, Temple
University, The College of William & Mary, Tulane University, University of
Arizona, University of Chicago, University of Georgia, University of Houston,
University of Miami, University of Minnesota, University of South Carolina,
University of Toledo, University of Virginia, Villanova University, Wayne State
University, William Mitchell College of Law, Yale University

Publications: Books
Legal Tender: A Lawyers Guide to Professional Dilemmas, published by ABA
(1995).
Traversing the Ethical Minefield, by Susan Martyn and Lawrence J. Fox, published by
Aspen (First Edition 2004; Second Edition 2008, Third Edition 2013).
Red Flags: Legal Ethics for Lawyers, by Lawrence J. Fox and Susan R. Martyn,
published by American Law Institute (First Edition 2005, Second Edition 2010,
Supplement 2009).
The Law Governing Lawyers: National Rules, Standards, Statutes, and State Lawyer
Codes, by Susan R. Martyn, Lawrence J. Fox, W. Bradley Wendel, published by
Aspen (2006-2007 Edition, 2007-2008 Edition, 2008-2009 Edition, 2009-2010
Edition, 2010-2011 Edition, 2011-2012 Edition, 2012-2013 Edition, 2013-2014
Edition, 2014-2015 Edition, 2015-2016 Edition).
Your Lawyer, A Users Guide, by Lawrence J. Fox and Susan R. Martyn, published by
Lexis Nexis (2006).
Raise the Bar: Real World Solutions for a Troubled Profession, edited by Lawrence J.
Fox, published by ABA (2007).
How to Deal with Your Lawyer: Answers to Commonly Asked Questions, by Lawrence
J. Fox and Susan R. Martyn, published by Oxford University Press Oceana (2008).
The Ethics of Representing Organizations: Legal Fictions for Clients, by Lawrence J.
Fox and Susan R. Martyn, published by Oxford University Press (2009).
A Century of Legal Ethics, edited by Lawrence J. Fox, Susan R. Martyn and Andrew S.
Polis, published by ABA (2009).

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Exh. 120
Publications: Book Chapters
Accounting Experts in Expert Witnesses, edited by Faust Rossi, published by ABA
(1991).
The Law of the Third Circuit in Sanctions, published by ABA (1991).
The Special Litigation Committee Investigation: No Undertaking for the Faint of
Heart, edited by Brad D. Brian and Barry F. McNeil, published by ABA (1992) (revd
2002).
The Last Thing Dispute Resolution Needs Is Two Sets of Lawyers for Each Party,
edited by Russ Bleemer, published by CPR Institute for Dispute Resolution and
Alternatives (January 2001).
Mediation Values and Lawyer Ethics: For the Ethical Lawyer the Latter Trumps the
Former, Dispute Resolution Ethics, A Comprehensive Guide, edited by Phyllis
Bernard and Bryant Garth, published by ABA (2002).
The Academics Have It Wrong: Hysteria Is No Substitute for Sound Public Policy,
ENRON Corporate Fiascos and Their Implications, edited by Nancy B. Rapoport and
Bala G. Dharan, published by Foundation Press (2004).
The Death of Partnership: Can We End the Trend? and Should We Mandate Doing
Well by Doing Good, Raise the Bar: Real World Solutions for a Troubled
Profession, edited by Lawrence J. Fox, published by ABA (2007).
The ABAs Role in Writing Ethics Rules: A Sacred Trust, A Century of Legal Ethics,
edited by Lawrence J. Fox, Susan R. Martyn and Andrew S. Polis, published by ABA
(2009).
Professional Responsibility, Civility and Judicial Conduct, in Military Court Rules
of the United States (2010 National Institute of Military Justice).

Publications: Articles
Waivers of Future Conflicts of Interest: A Blessing Or A Nightmare? and Issue
Conflicts: Genuine Ethical Dilemmas Or Problems Of Public Relations published by
Securities Regulation Institute (1989).
CB&H Announces New Public Service Initiative, The Pennsylvania Lawyer (March
1991).
Two Views on Ancillary Business published by South Carolina Lawyer (1991).
Restraint is Good in Trade, National Law Journal, April 29, 1991.
Litigation in 2050 - A Backward Forward, Topsy-Turvy Look at Dispute Resolution,
and Professionalism: Misplaced Nostalgia or Meaningful Loss? ABA National
Conference on Professional Responsibility (May, 1991).
Fie On The Purchasing Agents: An Outside Counsels Reply to Ellis Mirskys In-
House Counsel Recognizing New Buying Opportunities, Corporate Counsel,
September, 1991.
Slip-Sliding Away, The American Lawyer, October, 1991.
The Future Of The Law Firm As An Institution, International Society of Barristers,
October, 1991.
The Ghost of Litigation Future, 18 ABA J. SEC. LITIG. 1 (1991).
It Wasnt the Money, The American Lawyer, December 1992.
The Inquiry, Business Law Today, December 1992.

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Exh. 120
 Cowboy Ethics on the Main Line, ABA J. SEC. LITIG, (1993).
Can This Marriage Be Saved? National Law Journal, June 1993.
OTS vs. Kaye Scholer, The Business Lawyer, August, 1993.
Mini-trials, 19 ABA J. SEC. LITIG 4 (1993).
Letter to Professor Hazard: Maybe Now Hell Get It, Vol. 7 Georgetown Journal of
Legal Ethics, Summer 1993.
The Right Thing for the Wrong Reason, Alternatives, November 1993.
Waivers of Future Conflicts of Interest: A Blessing or a Nightmare? Corporate
Counsels Guide to Lawyering Laws, 1993.
Marketing or Mayhem? The firm is mythical; the nightmare is real, Business Law
Today, Jan/Feb 1994.
Waivers of Future Conflicts of Interest: A Blessing or a Nightmare,? Lawyering Laws,
Business Laws, Inc.
Its All In The Atmosphere, Vol. 62 Fordham L. Rev., March 1994.
Lawyers Cant Serve Two Masters Honestly, National Law Journal, November
1994.
Reap As You Sow, Business Law Today, January/February, 1995.
Contract to close courts, Association Trends, May 31, 1995.
Direct Doesnt Mean Dull: The Philadelphia Story, Part One, California Litigation,
Spring 1995.
Conservative Fee Plans Penalize Poor Plaintiffs, National Law Journal, May 29,
1995.
Firing the Client, 21 ABA J. SEC. LITIG, 3 (1995).
Do Lawyers Deserve Them When Cases Settle Quickly; Yes: Lawyers Should Have
the Benefit of the Bargain, ABA Journal, July, 1995.
Maintaining Equal Access to Courts in New Climate, National Law Journal, August
7, 1995.
Liability Squared, Probate & Property, September/October 1995.
Leave Your Clients at the Door, ABA J. SEC. LITIG, (1995).
His Honor, California Litigation, Fall 1995.
Take Care of Each Other, ABA J. SEC. LITIG, (1995).
Congress Slashes Funding 25%, Refuses to Fund Critical Medical Procedures,
Litigation Docket, Fall 1995.
Politics is Threatening The Federal Judiciary, National Law Journal, March 18,
1996.
Opposing Counsel: Ex Parte Contacts, Litigation News, March 1996.
A Fortiorari, ABA J. SEC. LITIG, (1996).
Why Do They Call It Discovery? ABA J. SEC. LITIG, (1996).
Advocates for the System; Advocates for Ourselves, Litigation Docket, Spring 1996.
He Should Know Better, Litigation Docket, Summer 1996.
Money Didnt Buy Happiness, Dickinson L. Rev., Spring 1996.
Lawyers Need Not Be Contingent-Fee Villains, National Law Journal, December 9,
1996.
The Phone Call, ABA J. SEC. LITIG, (1996).

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Exh. 120
 Why Does Gift Limit Single out Bond Lawyers? National Law Journal, May 5,
1997.
Its OK To Discuss Billing, Solo, Law Office Information for Solo & Small Firm
Practitioners, Summer 1997.
Accountant Bosses Pose Ethical Threat, National Law Journal, October 6, 1997.
Litigating Conflicts: Is it Time to Revive the Appearance of Impropriety?,
Professional Lawyer, February 1998.
Write Your Chief Justice Today About Rule 4.2! National Law Journal, March
1998.
Leave Your Clients at the Door, 26 Hofstra L. Rev. 595 (1998).
I Didnt Realize, 24 ABA J. SEC. LITIG 48 (1998).
Fee Fie Foe Firm: Big Four Gobble Up Lawyers, National Law Journal, July 27,
1998.
Pay-to-Play; Cure Would Be Worse Than Disease, National Law Journal, August 3,
1998.
ABA Remedy Worse than Illness, USA Today, August 3, 1998.
Unethical Billing Practices, Rutgers L. Rev. Summer 1998.
The Accountants Are Coming; the Accountants Are Coming, The Journal of Legal
Marketing, October, 1998.
Clinton Sanction: Disbarment, National Law Journal, October 26, 1998.
The President is a lawyer, so punish him accordingly, The Philadelphia Inquirer,
Tuesday, November 3, 1998.
Ethics Help for Your In-House Law Firm, In-House Practice & Management,
November, 1998.
NABL Wont Support Rule Singling Out Muni Lawyers, The Bond Buyer, Inc.,
November 17, 1998.
Fighting for Independence: Were Lawyers, Not Just Another Service Provider, The
Philadelphia Lawyer, Winter 26, 1998.
Ethics Crossfire, National Law Journal, February 1, 1999.
Ethics: Beyond the Rules Historical Preface, Fordham L. Rev., November 1998.
Setting the Priorities: Ethics Over Expediency, Stetson L. Rev., Fall 1998.
Legal Services and the Organized Bar: A Reminiscence and a Renewed Call for
Cooperation, Yale Law & Policy Review, 1998.
Conflicts in the Corporate Family: Professor Wolfram Has It Almost Right, 2
Journal for the Institute for the Study of Legal Ethics 367 (1999).
Delegates: Save Us From Ourselves, National Law Journal, June 21, 1999.
Who Shall Live and Who Shall Die, Intellectual Capital.com, June 23, 1999.
Lawyers Ethics According to Nader: Let the Corporate Clients Beware, 12
Georgetown Journal of Ethics 367 (1999).
Defend Our Clients, Defend Our Profession, The Pennsylvania Lawyer, July/August
1999.
MDPs: A Euphemism for Destroying a Profession, 1 Journal of Tax Practice &
Procedure, 24 (1999).
New Firm: Wolf in Sheeps Clothing, National Law Journal, January 24, 2000.
Old Wine in Old Bottles: Preserving Professional Independence, 72 Temple L. Rev.
971 (2000).

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 Accountants, the Hawks of the Professional World: They Foul Our Nest and Theirs,
Too, Plus Other Ruminations on the Issue of MDPs, 84 Minn. L. Rev. 1097 (2000).
MDPs and legal ethics: Big 5 lays siege upon Rule 5.4, Oregon State Bar Bulletin,
July 2000.
Dans World: A Free Enterprise Dream; An Ethics Nightmare, 55 The Business
Lawyer, 1533 (August 2000).
Free Enterprise Heaven; Ethics Hell, 27 William Mitchell L. Rev. 1217 (2000).
Im Just An Associate At A New York Firm, 69 Fordham L. Rev. 939 (December
2000).
The Last Thing Dispute Resolution Needs Is Two Sets of Lawyers for Each Party,
Alternatives, Vol. 19, No. 1, January 2001.
A Federal Litigators Guide to Keep Close At Hand, reviewing Business and
Commercial Litigation in Federal Courts, The Pennsylvania Lawyer (March-April,
2001).
Ethics 2000: Is It Good for the Clients?, Vol. 48, No. 6, Louisiana Bar Journal,
April 2001.
Those Who Worry About the Ethics of Negotiation Should Never be Viewed as Just
Another Set of Service Providers, 52 Mercer L. Rev. 977 (Spring 2001).
Alls O.K. Between Consenting Adults: Enlightened Rule on Privacy, Obscene Rule
on Ethics, 29 Hofstra L. Rev. 701 (Spring 2001).
If I Were King, 27 ABA J. SEC. LITIG, 2, (2001).
ENRON AFTERSHOCKS Whistleblowing Is a Non-issue, The Legal Intelligencer,
February 25, 2002.
Points of View, Legal Times, March 4, 2002.
Litigator Fox Debates Corporate Counsel Critic, The Legal Intelligencer, April 4,
2002.
Forgeddabout Conflicts If Citibar Has Its Way, We Can Have Just One Big Law
Firm, Hofstra L. Rev., Spring 2002.
Former Clients in Florida Beware: Your Former Lawyer May Become Your Worst
Enemy, Professional Lawyer, Summer 2002, Volume 13, Issue Number 4.
When It Comes to Sex with Clients, Whom do you Trust: Nanny or the ABA? GP
Solo, October/November 2002, Volume 19, Number 27.
MDPs Done Gone: The Silver Lining in the Very Black Enron Cloud, Arizona L.
Rev., Fall/Winter 2002.
Defending a Deposition of Your Organizational Clients Employee: An Ethical
Minefield Everyone Ignores, South Texas L. Rev., Winter 2002.
It Takes More Than Cheek to Lose Our Way, St. Johns L. Rev., Spring 2003.
Your Clients Employee Is Being Deposed: Are You Ethically Prepared?, 29 ABA J.
SEC. LITIG 4 (2003).
Making the Last Chance Meaningful: Predecessor Counsels Ethical Duty to the
Capital Defendant, Hofstra L. Rev., Summer 2003.
Let Us Keep Our Dignity: Thirteen Habits of Highly Effective Judges (A Lawyers
List), ABA The Judges Journal, Fall 2003.
The Fallout from Enron: Media Frenzy and Misguided Notions of Public Relations
Are No Reason to Abandon Our Commitment to Our Clients, Illinois L. Rev.,
Volume 2003, No. 5.

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 I Did Not Sleep with that Vice President, The Professional Lawyer, Volume 15,
Issue Number 2, 2004.
Those Unpublished Opinions: An Appropriate Expedience or an Abdication of
Responsibility?, Hofstra L. Rev., Volume 32, No. 4, Summer 2004.
Can Client Confidentiality Survive Enron, Arthur Andersen, and the ABA?, Stetson
L. Rev., Volume 34, Number 1, Fall 2004.
No Ethics for Capital Defendants, The Professional Lawyer, Volume 16, Issue
Number 1, 2005.
The End of Partnership, Fordham Urban Law Journal, Volume 33, No. 1, November
2005.
Should We Mandate Doing Well by Doing Good, Fordham Urban Law Journal,
Volume 33, No. 1, November 2005.
End Billable Hour Goals Now, The Professional Lawyer, Volume 17, Issue
Number 3, 2006.
Capital Guidelines and Ethical Duties: Mutually Reinforcing Responsibilities,
Hofstra L. Rev., Volume 36, No. 3, Spring 2008.
Screening? Consider The Clients, co-authored with Susan R. Martyn, The Practical
Litigator, ALI-ABA, July 2008.
Non-Engaging, Engaging, and Disengaging Clients, ABA J. SEC. LITIG, 4 (2010).
How to Help Yourself: Researching the Law Governing Lawyers, co-authored with
Susan R. Martyn, The Practical Lawyer, October 2010.
The Assault on Client Loyalty: A Dialogue about Prospective Waivers, Screening,
and Suing Your Clients Parent, 37 ABA J. SEC. LITIG, 2, (2011).
The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty, 121 Yale
L.J. ONLINE 567 (2012), http://yalelawjournal.org/2012/03/27/fox.html.
Ethics Bureau at Yale: Combining Pro Bono Professional Responsibility Advice with
Ethics Education, Journal of Legal Education, Vol. 62, No. 4 (May 2013).
CommentaryLoyalty by Contract: A Sad Reflection on Lawyer Ethics, The
Professional Lawyer, Volume 22, Number 3, 2014.

Professional Appearances
Ethical Problems in Counseling, University of California, San Diego, Securities
Regulation Institute, January, 1989.
Money Isnt Everything But It May Help: Settling Class Actions, ABA Annual
Meeting, August, 1989.
ALI Restatement of Law Governing Lawyers, ABA Section of Litigation, January,
1990.
Ancillary Business, Pro and Con, ABA Division of Professional Liability, May,
1990.
Hearing on Ancillary Business Proposed Rules, ABA Standing Committee on Ethics
and Professional Responsibility, February, 1991.
National Association of Law Firm Marketing, Ancillary Services Debate, April, 1991.
The Legal Profession v. The Legal Business, Philadelphia Bar Association, 1991.
Doing Business with Clients: The Practice and Professional Implications, American
Bar Association, August, 1991.

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Exh. 120
 Lawyers and Their Liabilities in the 1990s, ABA Standing Committee on Lawyers
Professional Liability, Santa Fe, New Mexico, September, 1991.
Lawyer Dissatisfaction, A View From The Bottom, Philadelphia Bar Association
Bench-Bar Conference, November, 1991.
Pennsylvania Bar Association, Quality of Life for the Young Lawyer: A Forum,
February, 1992.
An Introduction: The Legal Profession and Professional Responsibility, Rutgers
University School of Law, Camden, February, 1992.
Lets Make A Deal: The Ethics of Negotiations, ABA 18th National Conference on
Professional Responsibility, June, 1992.
ABA Presidential Showcase Program, Lawyers Serving on Clients Boards/Financial
Transactions with Clients: Merit or Mistake, ABA Annual Meeting, August, 1992.
After Kaye, Scholer Can We Still Represent our Clients Effectively?, ABA
Litigation Section Fall Council Meeting, Pebble Beach, California, September, 1992.
Professionalism and Service: The Practical Side of Ethics Beyond the Code, ABA
Annual Meeting, Phoenix, Arizona, November, 1992.
Ethical Concerns in Todays Practice, Pennsylvania Bar Institute, December, 1992.
Evolving Responsibilities and Liabilities of Counsel and Accountants, Twentieth
Annual San Diego Securities Regulation Institute, January, 1993.
Ethics and Litigation Management: Your Road Map to the Minefield, Fourth Annual
Litigation Management Supercourse, New York, New York, March 1993.
In-House - Outside Counsel Forum: In-House and Outside Counsel Square Off,
Fourth Annual Litigation Management Supercourse, New York, New York, March
1993.
The Woman Advocate, Conference on the Woman Advocate, ABA Section of
Litigation and Prentice Hall Law & Business, New York, March 1993.
Regulatory Residue: The Fallout from Kaye Scholer, 19th National Conference on
Professional Responsibility, Chicago, Illinois, May 1993.
Ethics Seminar, Aetna Institute, May, 1993.
Death Penalty Appeals: The End of Fairness, ABA Spring Council/Committee
Chairs Meeting, Santa Fe, NM, June, 1993.
ABA Working Group Report on Lawyers Representation Of Regulated Clients: 18
Months After OTS v. Kaye, Scholer, ABA Annual Meeting, New York, New York,
August, 1993.
Blowing The Whistle: Should Regulatory Lawyers Be Required To Sound The
Alarm: The Kaye, Scholer Story, Business Law Forum, Temple University School of
Law, Fall 1993 Lecture Series.
Ethics of Negotiations, Berks County Bench-Bar Conference, Hershey, PA, October,
1993.
Ethics, Responsibility and ADR, Dispute Resolution Alternatives Supercourse,
Practicing Law Institute, New York, October 1993
Dont Throw the Baby Out with the Bath Water - How Much Management Is Too
Much Management... How Inside and Outside Counsel Must Communicate to Achieve
the Proper Balance, A Litigators TQM Survival Kit, The District of Columbia
Bar/George Washington University, National Law Center CLE Program, Washington,
DC, October 1993.

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 Representing Economic Competitors - Maritrans Revisited, Pennsylvania Bar
Institute, Baltimore, Maryland, November, 1993.
National ADR Institute for Federal Judges, Harvard Law School, Cambridge,
Massachusetts, November, 1993.
Conference on Ethical Problems in Representing the Elderly, Fordham University,
New York, December, 1993.
Legal Ethics for the Corporate Counselor, ABA Committee on Corporate Counsel,
February, 1994.
Revolutionary Changes in Practice under the New Federal Rules of Civil Procedure,
ABA/Prentice Hall Law and Business, New York City, February 1994.
Lawyers at Risk: Lessons from the Savings and Loan Crisis, University of
Pennsylvania Center on Professionalism, February, 1994.
Ethical Issues in Corporate Representation: The Seaside Resort Case Study,
University of Pennsylvania Center on Professionalism, March 1994.
Should the Legal Profession Adopt Stricter Controls on Lawyer Advertising?, The
State University of New Jersey at Rutgers, March 1994.
Legal Ethics and the Rule of Law, The Federalist Society, Philadelphia, Pa., March,
1994.
Rule 26: A Trap for the Wary, Eighteenth Annual United States Judicial Conference
for the District of New Jersey, April 1994.
The Woman Advocate Conference, ABA and Prentice Hall, New York, April 1994.
Are the Model Rules Out of Date in the Modern Regulatory State?, Keck Foundation
Fellow, Duke University, April 20, 1994.
Emerging Issues in Professional Responsibility and Malpractice, ABA Satellite
Seminar, June, 1994.
Strange Bedfellows: Law Firm and Corporate Counsel: Can This Partnership Be
Saved?, Business Law Section and CLE Committee of The Florida Bar, June, 1994.
Pre-Trial Practice in the 90s and Coping with New Rules of Civil Procedure and the
Civil Justice Reform Act, ABA Annual Meeting, New Orleans, August 1994.
The Receipt of Inadvertent Transmissions, Philadelphia Bar Education Center,
December, 1994.
Professional Responsibility Issues, Twenty-Second Annual Securities Regulation
Institute, Hotel del Coronado, Coronado, California, January, 1995.
Different Strokes for Different Folks: Methods for Handling Corporate Litigation,
13th Annual Mid-Winter Meeting, American Bar Association, Boca Raton, FL,
February 1995.
Redefining Client Service: The Legal Tech Evolution, Philadelphia Bar Association,
April 6, 1995.
Prospects and Likely Impact of Dodd-Domenici Legislation, ABA Annual Spring
Meeting, San Antonio, Texas, March, 1995.
The Woman Advocate Conference, ABA and Aspen Law and Business, San Francisco,
April 1995.
Hot Topics for Corporate Counsel, Ethics and the Corporate Counselor: Recurring
Ethical Tough Calls, The Corporate Counsel Committee of the ABA Section of
Litigation and the ABA Center of Continuing Education, May 11-12, 1995, Atlanta,
GA.

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 Media Law Roundtable, Access Leads to Understanding - Understanding Leads to
Access, ABA Section of Litigation and the National Conference of Lawyers and
Representatives of the Media, May 19, 1995, Washington, DC
Revolutionary New Changes in Civil Practice in the Federal Trial Courts, New
York, May 22, 1995.
Contingency Fees: Is One Third of a Loaf Better Than None?, 21st National
Conference on Professional Responsibility, San Diego, California, June 1-3, 1995.
The Woman Advocate Conference, ABA and Aspen Law and Business, New York,
June, 1995.
Securities Litigation Reform, Philadelphia Bar Education Center, October 11, 1995.
Discovery Abuse, Cornell Law School, October 25, 1995.
Practical Issues in the Practice of Environmental Law, Philadelphia Bar Association,
November 1995.
The Six Most Frequently Asked Questions, Philadelphia Bar Education Center,
December 15, 1995.
Securities Regulation and Business Law Problems, Dallas, Texas, February 1996.
Legal Ethics: The Core Issues, Hofstra University School of Law, March, 10-12,
1996.
Chief Justices Ethics Seminar, Deer Valley, Park City, Utah, March 15, 1996.
Ethical Considerations of Representing Corporate Clients and Their Affiliates,
Western Pennsylvania Chapter of the American Corporate Counsel Association, April
1, 1996.
Business Lawyers Under Fire, Liability and Ethical Risk Facing In-House and
Outside Counsel, ALI/ABA Satellite Program, April 2, 1996.
Taking Care of Each Other, The Dickinson School of Law Senior Speaker Series
Dinner, April 23, 1996.
Third Annual Conference on Women in the Profession: Unraveling the Mystery of
Ethics, Pennsylvania Bar Institute, May, 1996.
Restatement of the Law Governing Lawyers: Its Effect on Lawyer Discipline, 22nd
National Conference on Professional Responsibility, American Bar Association, June
1, 1996.
Improving the Profession, American Corporate Counsel Leadership Summit, June,
1996.
Lawyer as Director of A For-Profit Corporation, Philadelphia Bar Education Center,
July 1996.
Lawyers Serving on Boards of Directors of Their Clients, ABA Annual Meeting,
Orlando, Florida, August, 1996.
Ethics for Transactional Lawyers, Philadelphia Bar Education Center, September 9,
1996.
Ethical Issues for Corporate Counsel, The Price Waterhouse General Counsel
Forum, September 19, 1996.
Testing the Ethical Limits: Should We Resurrect the Appearance of Impropriety,
Yale Law School, October 8, 1996 and ABA Committee on Corporate Counsel, 1996
Northeast Regional Workshop, November 7, 1996.
Advertising, Solicitation and ProfessionalismDos and Donts, December Bench-
Bar, Philadelphia Bar Association, December 3, 1996.

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 Recent Developments in Legal Ethics, 15th Annual Corporate Counsel Institute,
December, 1996.
Conflicts of Interest in Corporate Transactions: The Leveraged Buyout of the Harris
Chemical Company, Rhodes College Institute on the Profession of Law, January,
1997.
1997 Lawyers Conference, PNC, February 12, 1997.
Litigators Under Fire, ALI-ABA Satellite Program, April 3, 1996.
Third Annual Chief Justices Ethics Symposium, Lawyer/Client Conflicts You Never
Knew You Had, April, 1997.
Regulation of Pay to Play: By Whom? For What? How Far?, Business Law Section,
American Bar Association, Spring Meeting April 1997.
National Association of Bond Lawyers Washington Seminar, May 1997.
Seeking Common Ground II: A Continuing Dialogue Between General Counsel and
the American Bar Association Second Annual Conference on Corporate Counsel
Issues, Ethics for In-house Counsel Washington, DC, May, 1997.
The Model Rules of Professional Conduct: Have We Lost our Professional Values?,
23rd National Conference on Professional Responsibility, Naples, FL, May, 1997.
Building Strategies for Better Corporate Client Services, 1997 Legal Leadership
Summit, Dallas, TX, June, 1997.
Keynote Address: An Informal Conference on Relationships Between Judges and
Lawyers, Maine Bench Bar Conference, June, 1997.
The Global Economy - Implications for Law and Legal Practice, Presidential
Showcase Joint Program, ABA Annual Meeting, August 1997.
The Lawyer as Director of a Client, ABA Annual Meeting, August 1997.
Lawyers Serving on their Clients Board: How to Avoid an Accident Waiting to
Happen, ABA Annual Meeting, August 1997.
Pathways to Leadership: A Primer for Women and Men, ABA Annual Meeting,
August 1997.
Ethics Issues for Transactional Lawyers, Philadelphia Bar Association Transact
Conference, September 19, 1997.
A Debate: The Role of the American Bar Association, The Federalist Society for Law
& Public Policy Studies, September 22, 1997.
Professional Issues in Complex Litigation, Seventh Circuit Judicial Conference and
Seventh Circuit Bar Association Annual Meeting, September, 1997.
Resolving Litigations Civil Wars: Negotiating a Ceasefire Among Plaintiff Lawyers,
Defense Lawyers, and Judges, Institute of Continuing Legal Education in Georgia,
October 10, 1997.
Mastering Time, Costs, Information & Technology, American Corporate Counsel
Associations 1997 Annual Meeting, San Francisco, CA, October 22-24, 1997.
Dialogue on Professional Dilemmas, American Bar Association, Section of
Litigation, October 25, 1997.
Ethics, Environmental Law Institute 1997 Boot Camp Course on Environmental
Law, November 1997.
Corporate Compliance, Ethics and Preventive Law, Price Waterhouse General
Counsel Forum, November 20, 1997.

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Exh. 120
 Professionalism in Practice, University South Carolina Law School, South Carolina
Bar CLE Division, November 21, 1997.
Tangled Loyalties: Conflicts of Interest in the Real World, Fellows of the American
Bar Foundation Annual Meeting, January 31, 1998.
Litigation Management Toolbox for the 21st Century, ACCA Legal Leadership
Summit, February, 1998.
The Future of Legal Services, The First Annual Arthur Liman Colloquium, March 5,
1998.
Professionalism in Class Action and Mass Tort Litigation, Sixth Annual Alvin B.
Rubin Federal Symposium, New Orleans, April 2, 1998.
Conflicts of Interest in a Deregulated World, Edison Electric Institute, Spring Legal
Conference, St. Pete Beach, FL, April, 1998.
Legal Ethics: Access to Justice Another Look at Corporate Family Conflicts, Hofstra
1998 Legal Ethics Conference, April 5-7, 1998.
Litigators Under Fire, ALI-ABA Satellite Program, April 9, 1998.
Legal Ethics in an Online World, Managing the Legal Risks of E-Commerce:
Practical Legal Strategies, The Computer Law Association, April 16, 1998.
The Brave New World of Lawyers Ethics, Twenty Fifth Annual Disciplinary
Conference of the District of Columbia, April 21, 1998.
Multidisciplinary Partnerships: Accounting Firms and the Practice of Law, ABA 24th
National Conference on Professional Responsibility, May, 1998.
Dual Professions, 1998 Masters Seminar on Ethics, Florida Bar
CLE Committee and the Professional Ethics Committee, June 1998.
Who Shall Live and Who Shall Die, Death Penalty Focus, June 3, 1998.
Keynote Address, Virginia State Bar Disciplinary Conference, July 21, 1998.
The Eroding Borders Between Law and Accounting: Look Whos Eating Your
Lunch, ABA 1998 Annual Meeting in Toronto, Ontario, August 3, 1998.
The ALI and Its New Projects, ABA 1998 Annual Meeting in Toronto, Ontario,
August of 1998.
Ethics in the 21st Century, ABA Product Liability Seminar in Phoenix, Arizona,
October 3, 1998.
The Atlanta Bar Association, The Presidential Showcase CLE Program: The
Millennial Lawyer in the 21st Century, The Practice in the 21st Century, October 15,
1998.
Association of American Law Schools, Workshop on Professional Responsibility,
The Ethics Professors: Enablers or High Priests, October 16, 1998.
Ethics in Environmental Law Environmental Law Institute 1998 Boot Camp,
November 13, 1998.
Political Contributions; Freedom of Speech or Pay to Play 4th Annual New York
Public Finance Conference, November 16-17, 1998.
Pay to Play: How We Got Here and Where We Might Be Going. Pennsylvania Bar
Institute, Current Issues in Municipal Finance, November 19, 1998.
Can We Revive Professionalism?, ACCA Annual Meeting, November 12, 1998.
Death Penalty Representation, University of Pennsylvania Law School Public
Service Form, November 17, 1998.

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Exh. 120
 Ethical Problems for In-House Counsel, Western Pennsylvania Chapter American
Corporate Counsel Association December 2, 1998.
Roundtable on Ethics, Western Pennsylvania Chapter of the American Corporate
Counsel Association, December 7, 1998.
Professional Responsibility for Intellectual Property Practitioners, Patent &
Trademark Office Day, December 9, 1998.
Cross-Examination, an ABA Section of Litigation Teleconference, December 15,
1998.
Ethics: Negotiating in Cyberspace, Practicing Law Institute 19th Annual Institute on
Computer Law, March, 1999.
Preserving Professional Independence, ABA Winter Council Meeting, Aspen, CO,
January, 1999.
What Firms Want and Need to Know About Representing a Death Row Prisoner,
ABA Winter Council Meeting, Aspen, CO, January, 1999.
The Accountants are Coming! The Accountants are Coming! Ethical Dilemmas
Facing Lawyers Practicing at CPA Firms, Los Angeles County Bar Taxation Section,
Los Angeles County Bar Association, February 1999.
Florida Should Oppose Lawyers Working for Non-Lawyers, Florida All Bar
Conference, February, 1999.
Ethical and Practical Challenges in Compliance Programs, Edison Electric Institute
1999 Spring Legal Conference, Charleston, S.C. April 1999.
Traversing the Ethical Minefield, ABA Section of Litigation Annual Meeting, April,
1999.
Is a Whole Generation Getting the Wrong Message on Ethics, ABA Section of
Litigation Annual Meeting, April 1999.
Ethics for the In-House Lawyer, ACCA, April 22, 1999.
Ethical Dilemmas in the Triangular Relationship, Insurance Practice Institute, April
1999.
Intrusion Into the Profession, Pennsylvania Bar Association Annual Meeting, May 5,
1999.
The Challenge of Multidisciplinary Practice, New Jersey State Bar Association
Annual Meeting, May 14, 1999.
Should the ABA Abolish Rule 5.4?, debate with John Aldock, ABA Section of
Litigation, Cancun, Mexico, June 19, 1999.
Race in Your Case, National Conference for Minority Lawyers, ABA Section of
Litigation, June 23, 1999.
Ethics 2000: Professional Responsibility in the New Millennium, 1999 Annual State
Bar of Arizona Convention, June 25, 1999.
Intrusion Into the Profession or the Future of Law Practice? Multi-Disciplinary
Practice, PBI-PBEC Education Center, Philadelphia, September 24, 1999.
MDP: Should In-House Counsel Care?, Corporate Counsel Committee of Business
Law Section of the ABA, San Diego, October 25, 1999.
Multi-Disciplinary Practices, Ethics, and the Future of the Legal Profession, Cornell
Law School, October 27, 1999.
Pro & Con: Should the PA Bar Embrace MDP?, PA House of Delegates, October
29, 1999.

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Exh. 120
 New Roles, No Rules? Redefining Lawyers Work, The Phyllis W. Beck Chair In
Law Symposium, Temple University Beasley School of Law, November 12, 1999.
Current Issues In Professional Responsibility, First Year Professional Responsibility
Lecture Series, Yale, December 1, 1999.
Multidisciplinary Practice, What it is and What it Means to the Vermont
Practitioner, Vermont Bar Association, Young Lawyers Section, January 14, 2000.
Symposium on Multidisciplinary Practice, University of Minnesota Law School,
Minnesota L. Rev., February 24-25, 2000.
Modifications to the ABA Model Rules of Professional Responsibility and
Application to Environmental Practice, American Bar Association Section of
Environment, Energy, and Resources Conference on Environmental Law, Keystone,
Colorado, March 12, 2000.
The Fifth Nearly Annual Ethics CLE & Ski, Park City Bar Association, Silver Lake
Lodge, Deer Valley, Utah, March 31, 2000.
The Question of Multi-Disciplinary Practice: Point Counterpoint, National
Academy of Elder Law Attorneys, Inc., Philadelphia, Pennsylvania, May 4, 2000.
Multidisciplinary Practice: Curse, Cure or Tempest In a Teapot, American
Intellectual Properly Law Association, Pittsburgh, Pennsylvania, May 19, 2000.
Multi-Disciplinary Practices and Ethics 2000, American College of Trial Lawyers
Regional Meeting, Short Hills, New Jersey, May 20, 2000.
Excessive Legal Fees: Protecting Unsophisticated Consumers, Class Action
Members, and Taxpayers/Citizens, U.S. Chamber Institute For Legal Reform, et al.,
Washington, DC, May 25, 2000.
Ethics 2000, Delaware Bench & Bar Conference, June 7, 2000.
Legal Ethics in Cross-Border Practice, The International Law Briefing, New York,
New York, June 8, 2000.
The Changing Practice of Law, DC Circuit Judicial Conference, Williamsburg,
Virginia, June 15, 2000.
MultiDisciplinary Practices (MDPs): A New Paradigm For the Delivery of Legal
Services?, 62nd Annual Meeting Virginia State Bar, Virginia Beach, Virginia, June
17, 2000.
May It Please The Court, I am from Arthur Price & Deloitte: MDPs, Should Trial
Lawyers Care?, ABA Section of Litigation, New York, New York, July 8, 2000.
Successful Partnering Between Inside and Outside Counsel: Advice from the
Experts, ABA Section of Business Law, New York, New York, July 9, 2000.
The Imposition Of The Death Penalty Is Fraught With Error: Where Do We Go
From Here?, ABA Section of Litigation, New York, New York, July 10, 2000.
If Free Enterprise Has Its Way, Will We Still Need Rules of Professional
Responsibility, Centennial Lecture, William Mitchell College of Law, St. Paul,
Minnesota, October 4, 2000.
ABA Call to Action: A Moratorium On Executions, Atlanta, Georgia, October 11-
12, 2000.
Negotiating the Ethical Minefield, Professional Education Group, Miami, Florida,
October 13, 2000.

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Exh. 120
 Alls OK Between Consenting Adults: Enlightened Rule on Privacy; Obscene Rule
on Ethics, Howard Lichtenstein Legal Ethics Lecture, Hofstra University School of
Law, October 18, 2000.
Ethics in the Workplace, University of Pennsylvania, Philadelphia, Pennsylvania,
October 25, 2000.
Ethical Issues in Corporate Practice Today; Compensation and Acquisitions,
Corporate Governance Institute, Washington, DC, November 9, 2000.
Ethics in Environmental Law, Environmental Law Institutes Ninth Annual Boot
Camp Course, Georgetown University, Washington, DC, November 13, 2000.
Proposed Revisions to the American Bar Association Model Rules, The Federal
Council & Foundation, Princeton, New Jersey, November 18, 2000.
ABA Ethics 2000: Whats New in the Proposed Model Rules, Louisiana State Bar
Association, New Orleans, Louisiana, December 1, 2000.
Teleconference on Ethics, National Association of Bond Lawyers, Washington, DC,
December 6, 2000.
Multi-Disciplinary Practice and the Fiduciary Lawyer, Pennsylvania Bar Institute,
Philadelphia, Pennsylvania, December 12, 2000.
Multidisciplinary Practice: What it is and What it Means for Vermont Practitioners,
Young Lawyers Section of the Vermont Bar Association, Montreal, Quebec, January
14, 2001.
Conference on Attorney Conduct Rules, Administrative Office of the United States
Courts, Washington, DC, January 16, 2001.
Multidisciplinary Practices & Healthcare, American Bar Association, Health Law
Section, Orlando, Florida, February 9, 2001.
The Death Penalty: A Bar Leadership Issue, National Conference of Bar Presidents,
ABA Midyear Meeting, San Diego, California, February 17, 2001.
Ethics 2000 Presentation: What Every Lawyer Should Know About Ethics 2000
Highlights of the Proposed Changes to the ABA Model Rules of Professional
Conduct, Center for Professional Responsibility, ABA Midyear Meeting, February
18, 2001.
Ethics 2000: The Proposed Rules and Your Practice, American College of Trial
Lawyers Spring Meeting, Boca Raton, Florida, March 30, 2001.
The American Bar Associations Ethics 2000 Commission: A Review of Proposed
Changes in the ABAs Model Rules of Professional Conduct, The Board on
Professional Responsibility, District Columbia Court of Appeals, Washington, DC,
April 18, 2001.
The Role of Honesty in the ABA Ethics 2000 Report, The Fellows of the Wisconsin
Law Foundation Symposium, Lake Geneva, Wisconsin, May 1, 2001.
Summer Associates Days Ethics Discussion, Philadelphia Volunteers for the
Indigent Program, Philadelphia, Pennsylvania, June 4, 2001.
Legal Tender: Negotiating the Ethical Minefield, Kentucky Bar Association 2001
Annual Convention, Lexington, Kentucky, June 13, 2001.
Ethical Issues in Public Interest Law, 9th Annual Public Interest Law Day,
Pennsylvania Bar Institute, Philadelphia, Pennsylvania, June 21, 2001.
Costs & Funding Forum, Personal Injuries Bar Association, Annual Conference
2001, St. Catherines College, Oxford, June 30, 2001.

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Exh. 120
 Ethics 2001: Are you ready for the challenge?, American Law Institute-American
Bar Association Committee on Continuing Professional Education, Washington, DC,
July 24, 2001.
Death Penalty Program, American Bar Association Annual Meeting, Chicago,
Illinois, August 5, 2001.
Ethics 2000: Should Litigators Care? Should Clients Care?, American Bar
Association Annual Meeting, Chicago, Illinois, August 5, 2001.
Ethical Dilemmas for Capital Post-Conviction Counsel, National Federal Habeas
Corpus Seminar, Nashville, Tennessee, August 10, 2001.
Forget About Conflicts If Citibar Has Its Way, We Can Have Just One Big Law
Firm, Hofstra University School of Law, The 2001 Legal Ethics Conference, Legal
Ethics: What Needs Fixing?, Hempstead, NY, September 10, 2001.
Trial Evidence in the Federal Courts: Problems and Solutions, American Law
Institute-American Bar Association Committee On Continuing Professional Education,
Philadelphia, PA, October 5, 2001.
Ethics and Professionalism, Pennsylvania Bar Institute, Philadelphia, PA, October
11, 2001.
Vermont Bar Association Seminar, Burlington, Vermont, November 8, 2001.
Ethics in Capital Defense, Ninth Annual Capital Defense Workshop, The Virginia
Bar Association, Richmond, VA, November 15-16, 2001.
Litigation Ethics, Section of Litigation and Young Lawyers Division, ABA Mid-
year Meeting, Philadelphia, PA, February 2, 2002.
Ethics Round Table, 2002 Winter Federal Bench Bar Council Conference, Puerto
Rico, February 16, 2002.
The Future Structure and Regulation of the Law Practice, University of Arizona,
James E. Rogers College of Law, Tucson, Arizona, February 22-23, 2002.
Litigation in a Free Society, Institute for Law & Economic Policy, Hollywood,
Florida, March 15-16, 2002.
The Ethics 2000 Commission: The Adversary System and the Lawyer-Client
Relationship, University of Tennessee College of Laws Center for Advocacy Dispute
Resolution, Knoxville, Tennessee, April 4, 2002.
Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual, Law
Review Symposium sponsored by University of Illinois at Urbana-Champaign,
Champaign, Illinois, April 5, 2002.
The Intersection of Lawyer Ethics and the Death Penalty, Yale Law School, April 8,
2002.
Ethics and Enron, 22nd Annual Ray Garrett, Jr., Corporate and Securities Law
Institute, Northwestern University School of Law, Chicago, Illinois, April 12, 2002.
Planning for Disaster, PBI-CLE, Philadelphia, PA, April 22, 2002.
Ethical Issues in Corporate Practice Today, ALI-ABA Ninth Annual Corporate
Governance Institute, Boston, MA, May 10, 2002.
Ethics Issues for the IP Practitioner, Philadelphia Intellectual Property Law
Association, Philadelphia, PA, May 16, 2002.
Legal Tender, New Jersey Bar Association, Mt. Laurel, NJ, May 18, 2002.
Legal Tender, New Jersey Bar Association, Atlantic City, NJ, May 22, 2002.

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 Ethical Issues In Public Interest Practice, 10th Annual Public Interest Law Day,
Philadelphia, PA, June 7, 2002.
Ethics for In-house Counsel, IBM, Armonk, NY, June 11, 2002.
Legal Tender, Louisville Bar Association, Louisville, KY, June 25, 2002.
The Fallout from Enron, ABA Section of Litigation, Banff, Alberta, Canada, June
22, 2002.
How to Improve the System of Justice through CLE, Association for Continuing
Legal Education, Montreal, Canada, July 28, 2002.
Enron and its Aftermath, St. Johns University School of Law, Jamaica, NY,
September 20, 2002.
The Attorney-Client Privilege, PBI Workshop, Philadelphia, PA, October 16, 2002.
The Ethics of Litigation, South Texas L. Rev. Annual Ethics Symposium, Houston,
TX, October 18, 2002.
Handling Professional Dilemmas, Maine Bar Association, Portland, ME, November
7, 2002.
Problems in Discovery and Professionalism, University of Georgia School of Law,
Athens, Georgia, November 15, 2002.
The Role of the Corporate Attorney after Enron and the Sarbanes-Oxley Act,
Fordham Center for Corporate, Securities and Financial Law, Fordham University
School of Law, New York, NY, November 22, 2002.
Lawyer Regulation After Enron, Association of American Law Schools,
Washington, DC, January 5, 2003.
A Matter of Corporate Responsibility: Where Are We Going From Here?, New
York State Bar Association, New York, NY, January 22, 2003.
Ethics and Professionalism on the Big Screen, New York State Bar Association,
New York, NY, January 23, 2003.
Trial Evidence in the Federal Courts, ALI-ABA, Coral Gables, FL, January 30,
2003.
Did Enron Create a Need for New Regulation of Lawyers?, Univ. of Houston,
Houston, TX, February 3, 2003.
Bar Summit On Corporate Responsibility, (Sarbanes-Oxley panel) Association of
the Federal Bar of the State of New Jersey 27th Annual United States District Court
Judicial Conference, West Orange, NJ, March 6, 2003.
Legal Tender, The State Bar of New Mexico, Albuquerque, NM, March 13, 2003;
Santa Fe, NM, March 14, 2003.
Insight for Inspired Practice: Dispute Resolution Ethics, ABA Section of Dispute
Resolution, San Antonio, TX, March 21, 2003.
Ethics Issues in Dispute Resolution, 2003 Petroleum Marketing Attorneys Meeting,
Washington, DC, April 1, 2003.
The Brave New World of Lawyers Ethics: Revised Rules and Bold Challenges,
ALI-ABA Video Law Review, Washington, DC, April 4, 2003.
Ethics in the Media: The Ever-Growing Thirst for Information, ABA Litigation
Section, New York, NY, June 5, 2003.
The Death Penalty: Race, Representation and Reform, ABA National Conference
for the Minority Lawyer, Philadelphia, PA, June 5, 2003.

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Exh. 120
 Corporate Governance After Sarbanes-Oxley, ALI-ABA Tenth Annual Corporate
Governance Institute, Philadelphia, PA, June 6, 2003.
Legal Issues in a New World, Eighth Circuit Judicial Conference, Minneapolis, MN,
July 17, 2003.
Judging Judges Ethics, Hofstra University School of Law, Hempstead, NY,
September 15, 2003.
Youve Finished the Internal Investigation Now What?, Association of General
Counsel Fall Meeting, Washington, DC, October 10, 2003.
Settlement Strategies and Ethics, ABA-CLE TeleConference and Audio Webcast,
October 14, 2003.
Strengthening the Guiding Hand of Counsel: Reforming Capital Defense Systems,
Hofstra University School of Law, Hempstead, Long Island, NY, October 24, 2003.
Ethics and Professional Liability, American Board of Professional Liability
Attorneys Convention, Philadelphia, PA, October 25, 2003.
Ethics in Environmental Law, Environmental Law Institutes Twelfth Annual Boot
Camp Course, Georgetown University, Washington, DC, November 11, 2003.
Federalism & The Regulation of Attorneys, The Federalist Society, Washington,
DC, November 15, 2003.
Advocacy & Ethics, ALI-ABA, Scottsdale, AZ, December 4-5, 2003.
Can Client Confidentiality Survive Enron, Arthur Andersen and the ABA?, Stetson
University College of Law, Tampa, FL, January 28-30, 2004.
Supreme Court Judicial Recusals, The Federalist Society for Law and Public Policy
Studies, Washington, DC, April 6, 2004.
Liars and the Lying Lawyers and Clients Who Tell Them," ABA Section of
Litigation Annual Meeting, Scottsdale, AZ. May 6, 2004.
Beating the Rap: How to Protect Your Clients (and Yourself) from the Exposure of
Criminal Violations in Bankruptcy Cases, Eastern District of Pennsylvania
Bankruptcy Conference, Philadelphia, PA, May 17, 2004.
Lawyers Ethical Challenges in the Office, Boardroom, and Beyond, ALI-ABA
Video Law Review, Washington, DC, June 25, 2004.
Negotiation, Ethics & Mandatory Disclosures, Atlanta, GA, August 7, 2004.
The Decline of Confidentiality for the Corporate Attorney, Philadelphia, PA, August
25, 2004.
Ethics & Marketing Learn How to Comply When You Communicate,
Philadelphia, PA, September 22, 2004.
New Rules of Professional Conduct, Philadelphia Bar Association, Philadelphia,
PA, September 29, 2004.
Negotiating the Ethical Minefield, Professional Education Group, Cary, NC,
September 30, 2004.
Ethics of Contingent Fees, ABA Tort Insurance Practice Fall Council Meeting,
Rockport, ME, October 8, 2004.
Ethics and the Law, CNL Leadership Forum on Integrity, Philadelphia, PA, October
25, 2004.
Private Equity and Venture Capital Financing, Philadelphia, PA, November 10,
2004.

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Exh. 120
 Ethics in Environmental Law, Environmental Law Institutes Thirteenth Annual
Boot Camp Course, Georgetown University, Washington, DC, November 11, 2004.
Amendments to Pennsylvania Rules of Professional Conduct, Philadelphia
Association of Defense Counsel, Philadelphia, PA, November 16, 2004.
Corporate Governance After Sarbanes-Oxley, ALI-ABA Corporate Governance
Institute, Washington, DC, December 3, 2004.
Eastern District of Pennsylvania Bankruptcy Conference, 16th Annual Forum,
Plainsboro, NJ, January 29, 2005.
Valuation of Intellectual Property for Litigation, Business and Tax Purposes,
Philadelphia Bar Institute, Philadelphia, PA, March 4, 2005.
Erosion of the Attorney-Client Privilege, Atlantic Legal Foundation, Washington,
DC, March 10, 2005.
The New Pennsylvania Rules of Professional Conduct: What Do They Mean for
Health Lawyers?, PBI Annual Health Law Institute, Philadelphia, PA, March 15,
2005.
Professional Challenges in Large Firm Practices, Fordham University School of
Law, New York, NY, April 15, 2005.
Death of Confidentiality: Not on Our Watch, Louisville, KY Bar Association, April
20, 2005.
Red Flags, Client Troubles, and the Ethics of Representation, ALI-ABA,
Washington, DC, June 3, 2005.
Legal Ethics in a New Millennium: New Practice, New Rules, New Visions, AALS,
Montreal, Canada, June 12-14, 2005.
Legal Tender Wyoming State Bar Convention, Professional Education Group, Inc.,
Casper, Wyoming, September 9, 2005.
The Business Lawyers Institute 2005, Philadelphia Bar Institute, Philadelphia, PA,
October 20, 2005.
Trial Evidence in the Federal Courts Problems and Solutions, ALI-ABA, Chicago,
IL, October 21, 2005.
Professional Responsibility & Risk Management Conference, Hinshaw &
Culbertson LLP, New York, NY, October 27, 2005.
Ethics Guidance for the Conflicted Lawyer, ABA TIPS Aviation and Space Law
Committee, Washington, DC, November 10, 2005.
Working Both Sides: Conflicts Arising Out of Advance Waivers Where Law Firm
Attempts to Represent Both Insurers and Insureds, ABA Section of Litigation,
Insurance Coverage Litigation annual conference, Tucson, AZ, March 4, 2006.
Outreach Through Lawyering, University of Pennsylvania Law School, Latin
American Law Students Association, Philadelphia, PA, March 17, 2006.
Gandhi: Ethical Legal Practice in the Modern Era, University of Pennsylvania Law
School, South Asian Law Students Association, Philadelphia, PA, March 24, 2006.
ConocoPhillips Global Attorneys Meeting, Houston, TX, April 25, 2006.
Strategies for Avoiding Conflicts of Interest, Multi-Site Teleconference, May 17,
2006.
Ethics 2006: Accidental Clients, Red Flags, and Other Ethical Conundrums, ALI-
ABA, Washington, DC, October 13, 2006.

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 Ethics 101 Conquering Ethical Dilemmas, 2006 Fall Conference Young Lawyers
Division, American Bar Association, Baltimore, MD, October 20, 2006.
How the Law Schools Can Help, Rutgers Faculty Forum, Camden, NJ, November 6,
2006.
Fourth National Seminar on Forensic Evidence and the Criminal Law, New Orleans,
LA, January 20-21, 2007.
E-Ethics: Practical Considerations and Ethical Issues in Electronic Discovery, 1st
Annual National Institute on E-Discovery, American Bar Association, Chicago, IL,
March 9, 2007.
Trial Evidence in the Federal Courts: Problems and Solutions, ALI-ABA, New
York, NY, March 22, 2007.
Enhanced Ethics & Professionalism: the Intersection of Legal and Business
Concepts, Tulane University Law School, 19th Annual Corporate Law Institute, New
Orleans, LA, March 30, 2007.
Institutional Investor Activism: the Evolving Role of Institutional Investors in
Corporate Governance and Corporate Litigation, 13th Annual ILEP Conference, Cabo
San Lucas, Mexico, April 19-20, 2007.
Electronic Information Storage: Ethical Considerations and Risk Issues, Nixon
Peabody, Boston, MA, April 24, 2007.
Conflicts of Interest: Keys to Solving Your Toughest Problems, National
Constitution Center audio conference, Philadelphia, PA, May 22, 2007.
Ethics for Bank Regulatory Attorneys, CLE Program, Office of the Chief Counsel,
Comptroller of the Currency, Washington, DC, June 14, 2007.
Litigation Quiz Show, ABA 2007 Annual Meeting, San Francisco, CA, August 11,
2007.
Switch Hitting? Ethical Implications of Advance Conflict Waivers, ABA 2007
Annual Meeting, San Francisco, CA, August 11, 2007.
Fourth Annual Institute on Corporate, Securities, and Related Aspects of Mergers and
Acquisitions, Co-sponsored by Penn States Dickinson School of Law and the New
York City Bar, New York, NY, October 16, 2007.
Ethics Update 2007 Accidental Clients, Red Flags, and Other Ethical Conundrums,
ALI-ABA Live Video Webcast, December 7, 2007.
Man the Barricades! Defend the Privilege!, The Lou Ashe Lecture, University of
the Pacific, McGeorge School of Law, Sacramento, CA, March 12, 2008.
Ethics for the Corporate Law Firm, Shearman & Sterling LLP, New York, NY,
March 20, 2008.
The Ethical Obligations of Lead Counsel, Institute for Law and Economic Policy
(ILEP) Fourteenth Annual Conference, Co-sponsored by the University of Wisconsin
Law School, Naples, FL, April 11, 2008.
The Ethics Centennial, ABA Litigation Section Annual Conference, Washington,
DC, April 18-19, 2008.
Conflict of Interest The Attorney/Client Relationship, LexisNexis Teleconference
Series, May 22, 2008.
The Last Days of the Philadelphia Lawyer, Philadelphia Bar Association,
Philadelphia, PA, July 1, 2008.

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 NAACP Legal Defense & Educational Fund, Inc.s 29th Annual Capital Punishment
Training Conference., Warrenton, VA, July 11, 2008.
Confidentiality and Ethical Dilemmas in Jewish and American Law, Gratz CLE
Series, Gladwyne, PA, July 30, 2008.
Harnessing the Winds of Change to Bring Balance and Meaning to the Workplace,
American Bar Association Annual Meeting, New York, NY, August 9, 2008.
Hot Topics in the International Arena, Chicago Bar Association, London, England,
October 5, 2008.
Ethics Update 2008: Control, Communication, and Competence, ALI-ABA,
Philadelphia, PA, October 7, 2008.
Litigation Practice: Risks that Never Relent, 2008 Large Law Firm Symposium,
Chicago, IL, October 15, 2008.
Judicial Ethics and the Lawyers Role in the Process, Philadelphia Bar Institute
Thirteenth Annual Bankruptcy Institute, Philadelphia, PA, October 16, 2008.
Clifton Kruse, Jr. Ethics Lecture, National Academy of Elder Law Attorneys, Inc.,
Kansas City, MO, October 24, 2008.
Ethical Considerations in Internal Investigations, Association of Corporate Counsel,
Chicago, IL, October 30, 2008.
Leading Legal Innovation, University of Southern California, San Diego, CA,
December 12-13, 2008.
Federal Practice in the District of Delaware: Ethical Issues in the Practice of Law,
CLE program co-sponsored by the U.S. District Court and the Federal Bar
Association, Wilmington, DE, March 11, 2009.
Ethical Duties in Mitigation Development, Imagining Future Mitigation: New
Science, New Ideas, Fifth National Seminar on the Development and Integration of
Mitigation Evidence, Philadelphia, PA, April 17, 2009.
When Trouble Walks Through the Door, ABA Litigation Section Annual
Conference, Atlanta, GA, May 1, 2009.
Ethics in Appellate Practice, Third Circuit Judicial Conference, Philadelphia, PA,
May 6, 2009.
Developments in Legal Ethics 2009: Using Screens in Private Practice, ALI-ABA,
Washington, DC, May 17, 2009.
Ethics or No Ethics? and Changes and Unique Opportunities for Defenders in
Todays Economic Crisis, 30th Annual Capital Punishment Training Conference,
Warrenton, VA, July 10-11, 2009.
Litigation Fundamentals: Negotiations and Settlements including Ethics Issues,
ABA Teleconference/Webcast, August 20, 2009.
The Ethics Quiz Show: Are You Ready to Be a Player, National Conference for the
Minority Lawyer, Philadelphia, PA, September 24, 2009.
Ethics and Risk Management Seminar, Milwaukee, WI, October 15, 2009.
Drawing the Ethical Line: Controversial Cases, Zealous Advocacy and the Public
Good, 10th Annual Legal Ethics & Professionalism Symposium, University of
Georgia School of Law, Athens, GA, October 16, 2009.
Due Process, 7th Constitutional Law Conclave, Pennsylvania Bar Institute,
Philadelphia, PA, October 30, 2009.

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 Legal and Government-Lawyer Ethics, ABA Senate Ethics 2010 CLE, Washington,
D.C., April 8, 2010.
Arguing Crime/Fraud and Other Exceptions to Privilege: An Expert Demonstration,
ABA Litigation Section Meeting, New York, NY, April, 2010.
Ethical Pitfalls What Every Civil Practitioner Needs to Know About Criminal
Issues in Civil Litigation, ABA Litigation Section Meeting, New York, NY, April 22,
2010.
The Assault on Client Loyalty: Of Prospective Waivers, Screening and Suing Your
Clients Parent, ABA Litigation Section Meeting, New York, NY, April 22, 2010.
Arguing Crime Fraud and Other Exceptions to Privilege: An Expert Demonstration,
ABA Litigation Section Meeting, New York, NY, April 23, 2010.
Ethical Dilemmas in Representing Organizations, Delaware State Bar Association,
Wilmington, DE, April 29, 2010.
Multiple Clients, Multiple Headaches: Identifying and Resolving Ethical Red Flags,
ALI-ABA, Washington, DC, May 16, 2010.
National Institute on Contemporary Mediation, ABA Section of Litigation, Chicago,
IL, June 10, 2010.
2010 Law Department Biennial Meeting, Office of the Comptroller of the Currency
Ethics CLE, Washington, DC, June 15, 2010.
Ethics for Litigators: Conflicts, Confidentiality and Competence, ABA Section of
Litigation Spring Leadership Meeting, Whistler, BC, June 19, 2010.
The Ethics of Disengagement Letters, Best of Sound Advice, ABA Section of
Litigation, Chicago, IL, June 24, 2010.
31st Annual Capital Punishment Training Conference, Warrenton, VA, July 9, 2010.
Class Action Litigation Strategies, Practicing Law Institute, New York, NY, July 22,
2010.
15th Annual National Federal Habeas Corpus Seminar, Cleveland, OH, August 26,
2010.
ETHICS: What are the ethical implications for a capital trial attorney in a habeas
proceeding?, Ohio Capital Habeas Seminar: Litigating Ineffective Assistance of
Counsel, Cleveland, OH, February 4, 2011.
Ethical Applications of the New Illinois Rules of Evidence, Clifford Law Offices,
Chicago, IL, February 17, 2011.
Ethical Considerations for Lawyers During the Financial Crisis, Symposium on the
Status of the Legal Profession: Facing the Challenges of the 21st Century, American
Inns of Court, Washington, DC, April 1, 2011.
Traversing the Ethical Minefield: Professional Responsibility Dilemmas in the Class
Action Practice, Institute for Law & Economic Policys 17th Annual Symposium,
Access to Justice, Manalapan, FL, April 8, 2011.
Ten Traps for the Wary, Atlanta General Counsel Forum, Atlanta, GA, May 10,
2011.
Lawyers Websites, Blogs, and Other Social Media Ethical Issues, PBI Ninth
Annual Nonprofit Institute, Philadelphia, PA, May 24, 2011.
Legal Ethics, 2011 Law Department Biennial Meeting, Office of the Comptroller of
the Currency Ethics CLE, Washington, DC, May 25, 2011.

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 Legal Ethics (Parts I and II), CLE program for the Office of the Chief Counsel,
Comptroller of the Currency, Biennial Meeting, Washington, D, May 25, 2011.
Reality Ethics: How to Avoid Getting Kicked Off the Island, G. Thomas VanBebber
Twelfth Annual Ethics in Litigation Forum, Earl E. OConnor American Inn of Court,
Kansas City, MO, June 16, 2011.
Can We Make Ethical Violations a Basis for Relief on Death Row? Airlie Center,
Warrenton, VA, July 8, 2011.
Expert Life After Changes to Rule 26, American Bar Association Annual Meeting,
Toronto, Canada, August 5, 2011.
Ethics for Defenders, Defender Summer School 2011, Orlando, FL, August 15,
2011.
Legal Ethics and Criminal Law: Resolving the Practitioners Headaches When the
Two Come Together, Federal Criminal Practice Seminar, Cleveland, OH, August 19,
2011.
Life Over Death, Florida Public Defender Association, Inc., Lake Buena Vista, FL,
September 9, 2011.
Loyalty under Attack: The Pernicious Prospective Waiver, ABA Lit. Sec. Ethics &
Professionalism, October 18, 2011.
So Someone Objects To Your New Client , ABA Administrative Law
Conference, Washington, DC, November 17, 2011.
Traversing the Ethical Minefield, CLE program for Shearman & Sterling LLP, New
York, NY, December 1, 2011.
Larry Fox and Susan Martyn on Ethics: Accidental Clients and Lawyers in the Job
Market, ABA, Litigation Section Webinar, December 14, 2011.
Prosecutorial Accountability in the Post-Connick v. Thompson Era: Reforms and
Solutions, ABA Midyear Meeting, New Orleans, LA, February 4, 2012.
Ethical Issues: Who Is The Client? PBI-CLE Protecting Our Children, Philadelphia,
PA, February 27, 2012.
Can This Profession Be Saved? Northern Illinois University law lecture, DeKalb, IL,
March 30, 2012.
Legal Representation of a Nonprofit Organization: Ethical Issues for Lawyer and
Client, PBI 10th Annual Nonprofit Institute, Philadelphia, PA, May 23, 2012.
Capital Punishment, NYC Bar Habeas Corpus Training Program, New York, NY,
July 11, 2012.
33rd Annual Capital Punishment Training Conference, Airlie Center, Warrenton, VA,
July 13, 2012.
Breakfast Ethics, South Carolina Bar Convention, Myrtle Beach, SC, January 27,
2013.
Constitutional Considerations, Annual William P. (Bill) Redick, Jr. Capital Defense
Seminar, Nashville, TN March 14, 2013.
Current and Emerging Issues in Ethics & Professional Responsibility, CLE Panel
Discussion, University of Pennsylvania Law School, Philadelphia, PA, May 10, 2013.
Examining the Ethical Issues of Nonprofit Financial Failure: A Case Study of In re
Lemington Home for the Aged, PBI 11th Annual Nonprofit Institute, Philadelphia, PA,
May 22, 2013.

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 Traversing the Ethical Minefield, Kentucky Bar Association Annual Convention,
Louisville, KY, June 20, 2013.
Traversing the Ethical Minefield: of Biased Judges, Turncoat Lawyers, Prying
Prosecutors and Dwindling Budgets, 34th Annual Capital Punishment Training
Conference, Airlie Center, Warrenton, VA, July 12, 2013.
For the Client or for the Lawyer? The All New Litigation Ethics Quiz Show 2013,
American Bar Association Annual Meeting, San Francisco, CA, August 8, 2013.
Legal Ethics in the News; Beauty Contest and Screening, American Law Institute
CLE, Video Webcast, December 17, 2013.
Who are They to Judge? Ethical and Professionalism Issues Facing the Bench, 14th
Annual Georgia Symposium on Legal Ethics and Professionalism, Athens, Georgia,
February 21, 2014.
Tennessee Death Penalty Seminar 2014, Tennessee Association of Criminal Defense
Lawyers, Nashville, TN, March 20, 2014.
Eleventh National Seminar on the Development and Integration of Mitigation
Evidence, Administrative Office of the U.S. Courts, Defender Services Office,
Training Division, Philadelphia, PA, March 28, 2014.
Oops: Communicating about Mistakes with Clients and Others, ABA Litigation
Section Annual CLE Conference, Phoenix, AZ, April 10, 2014.
Nonprofit Ethics Potpourri, PBI 12th Annual Nonprofit Institute, Philadelphia, PA,
May 28, 2014.
Preparation vs. Perjury: Ethical Issues Involving Working with Witnesses, Webinar
sponsored by the American Bar Association, May 29, 2014.
2014 Mart Vogel Lecture on Professionalism and Legal Ethics, University of North
Dakota School of Law, Grand Forks, ND, June 13, 2014.
Ethical Jeopardy, eDiscovery Edition, American Bar Association Annual Meeting,
Boston, MA, August 8, 2014.
Nineteenth Annual National Federal Habeas Corpus Seminar, Atlanta, GA, August
14, 2014.
Keynote Address, Intercollegiate Moot Court Competition, Tufts University Law
School, Boston, MA, November 15-16, 2014
33rd Annual Jay L. Westbrook Bankruptcy Conference, Austin, TX, November 21,
2014.
Dont Get Tangled in the Web, American Bar Association Winter Leadership
Meeting, Laguna Beach, CA, January 10, 2015.
Law Professors as Expert Witnesses, Widener Law School, Wilmington, DE, April
24, 2015.
Ethics at the Movies, PBI 13th Annual Nonprofit Institute, Philadelphia, PA, May 27,
2015.
First Judicial District Law Clerk CLE Ethics, Federal Courthouse, Philadelphia,
PA, June 17, 2015.
29th Annual KACDL Conference and Criminal Defense Seminar, Louisville, KY,
October 30, 2015.
Where Duties of Client Loyalty & Confidentiality Meet, Do Ethical Duties Collide?
Joint Representations in a Single Matter Revisited, APRL Mid-Year Meeting, San
Diego, CA, February 5, 2016.

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 Should you, Not can you? The Ethics of Profiting from Ancillary Services, General
Session 3: Kruse Lecture, Denver, CO, April 8, 2016.
Getting Clients, Keeping ClientsAnd Keeping Your Good Name, Too? Hot Topics
in Practical Ethics, American Bar Association, Section of Litigation Annual
Conference, Chicago, IL, April 15, 2016.

Prior Employment
1971-1972 Staff Attorney, Community Action for Legal Services, New York, NY
1969-1971 Reginald Heber Smith Community Lawyer Fellow, New York, NY
1968-1969 Clerk, Justice Samuel Roberts, Pennsylvania Supreme Court, Erie, PA

Honors and Awards

Fellow, American College of Trial Lawyers
Fellow, American Bar Foundation
U.S. Speaker and Specialist, Professional Ethics and Responsibility, and the Role of
Standing Committees on Lawyers Professional Conduct, Federal Capital Bar
Association and the Professional Council of Economics, Buenos Aires, Argentina,
August, 1997
CPR/ADR Guest Lectu, rer: Development Lawyers Course, Institute for Law and
Development, Rome, Italy, March 1997
Keynote Address, Pennsylvania Legal Services 1996 Striving Towards Excellence
Awards Banquet, Harrisburg, PA, March 12, 1997
Keynote Address, The Georgetown Journal of Legal Ethics ,Tenth Anniversary,
February 7, 1997
Baccalaureate Speaker, Dickinson Law School, April 1996
Robert Anderson Fellow of the Yale Law School for 1996-97
Community Legal Services Champion Award, April 1996
Philadelphia Bar Education Center Excellence in Legal Education Award, July 14,
1998
Service Above Self Award, Lamokin Village Council, December 8, 1998
Alumni Award of Merit, University of Pennsylvania Law School, May 14, 1999
The Rights and Responsibilities of Legal Professionals in the United States, U.S.
State Department, The Peoples Republic of China, January 11-29, 2002
Levy Award, New York State Bar Association, Committee on Professional Ethics,
New York, NY, April 23, 2003
Wachovia Fidelity Award, December 9, 2003
Thomas A. OBoyle Lecturer for Academic Year 2003-2004
William Reece Smith, Jr. Distinguished Lecturer, 2004
American Bar Association Pro Bono Publico Award, 2005
Michael Franck Award, 2007
25-Year Life Member, The American Law Institute, 2013
Lifetime Achievement Award, The Legal Intelligencer, 2013
Howard Lesnick Pro Bono Award, The Law Alumni Society, University of
Pennsylvania Law School, 2013.

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Exh. 120
Directorships
Credit Suisse Asset Management Income Fund 1988-present
Credit Suisse Asset Management Strategic Global Income Fund 1988-present
Indonesia Fund 2000-present
Winthrop Trust Company 2001-2009
The Chile Fund, Inc. 2006-present
The First Israel Fund, Inc. 2006-present
The Latin America Equity Fund, Inc. 2006-present
Dynasil Corporation of America 2011-present

Appearances
Inside the Law, Lawyers at a Crossroads, American Bar Association and Reliance
National Production, New York, November 5, 1993
Inside the Law, Whatever Happened to Atticus Finch? American Bar Association,
March 12, 1996
CNN Crossfire: The Death Penalty, February 9, 1997
CNN Crossfire: Should Federal Judges Be Impeached, March 13, 1997
Inside the Law: Examining the Lawyer/Client Relationship, Public Television
Series, April 9, 1997
Nightline: Ethics regarding tobacco industry lawsuits, May 29, 1997
Testify before Congress regarding Contingent Fees, April 30, 1997
Today Show: Attorney-Client Privilege, December 1, 1997
Nightline: Attorney Client in the Tobacco Litigation, April 22, 1998
Today Show: Attorney-Client Privilege after Death, June 8, 1998
Nightline: Should this Privilege Survive Death? June 8, 1998
MSNBC: Contingent Fees for Tobacco Lawyers, June 9, 1998
CNN: Impeachment of the President September 14, 1998
CNN: Talk Back Live: Disbarring the President, March 15, 2000
MSNBC: Moratorium on the Death Penalty, July 10, 2000
CNN: The Death Penalty and the Presidential Election, July 30, 2000
WHYY/Delaware: Your Lawyer: A Users Guide, July 18 and July 25, 2006
WHYY/Delaware: Legal Lesson re: Product Liability Law (spinach/E. coli
outbreak), September 19, 2006
MSNBC MOST: Could Pres. Bush Decide to Pardon Lewis Scooter Libby?, March
7, 2007

Community Activities
Member of the Board of Overseers of University of Pennsylvania School of Law and
Associate Trustee of the University of Pennsylvania, 1992-1999
Member, Board of Trustees, Friends Select School, 1982-1992
Member, Board of Trustees, Beth Zion - Beth Israel Synagogue, 1988-present
Former National Chairman, Annual Giving, University of Pennsylvania Law School
1987-89

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Exh. 120
 Member, Board of Advisors, United Way
Lecturer, sailing, U.S. Coast Guard Auxiliary

Education
University of Pennsylvania, The College, B.A. 1965
University of Pennsylvania Law School, LL.B. cum laude 1968
Managing Editor, University of Pennsylvania Law Review

Date of Birth
July 17, 1943

Home Address
468 Amity Road
Woodbridge, CT 06525

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