Information Filled Under 'LPO Models' Category
S.Ct. Justices on Trial Judges & Trial Lawyering Thursday, October 15th, 2009
From: High Court Justices Doubt Lawyers Should Be Paid Extra for Winning, Tony Mauro, The National Law Journal, October 15, 2009 Justice Alito on the quality and honesty of trial judges: “Justice Samuel Alito Jr. said he was ‘very troubled’ by the notion of a judge taking 4-plus million dollars from the taxpayers of Georgia and giving it as a bonus to the lawyers in the case for good performance. ‘It seems totally standardless,’ Alito said.
Excerpt from:
S.Ct. Justices on Trial Judges & Trial Lawyering
Contrary to Steve, I think that our online discussion has established some important points of broad interest. First, Steve has not been able to justify, on policy grounds, the fact that there is a dearth of cases under MR 3.3 in which fee-paid lawyers have blown the whistle on client perjury, and a substantial number of cases in which court-appointed lawyers have chosen to reveal client perjury. (And we’re talking policy here, not what today’s Supreme Court would decide.) Second, Steve cites People v. Johnson as a case that has rejected my position on client perjury (and note that Steve appears to know very well what that position is). As I said earlier, however, no case, including Johnson, has rejected my position after analyzing any of the relevant constitutional cases, in particular, Massiah v.
Read the original here:
Concluding (Perhaps) Remarks on the Perjury Trilemma
California just enacted a pilot program for a “civil Gideon” right — i.e., taxpayer supported lawyers who represent poor litigants in civil matters that most affect their lives (evictions, child custody disputes, domestic violence matters, etc.) Although it's just a pilot program, and is limited to California, this has the potential to grow enormously over the years. Proponents of the program have been patiently waiting and steadily planning for this day.
More:
"Civil Gideon" pilot program starts in California
The National Conference of Bar Examiners has created a Uniform Bar Exam, which a state can use in lieu of writing its own exams. (Story here and commentary here .) Of course, states have been moving in this direction for years through the widespread adoption of the multistate bar exam (MBE), multistate essay exam (MEE), multistate performance test (MPT), and multistate professional responsibility exam (MPRE). But most states have continued to test (or at least claim to be testing) some state-specific material. The Uniform Bar Exam, if adopted, would effectively do away with state-specific material entirely. I like the idea of a uniform exam for a couple of reasons. First, and most importantly, knowledge about local law should not be a prerequisite for bar admission. Consider that the typical bar exam already puts very little emphasis on local law, and there is no evidence that this emphasis on general legal principles has produced more incompetence or malpractice. That's no surprise. Law schools (and bar prep courses) can expose students to only a small fraction of the law that lawyers need to know. If the licensing process ensured that lawyers know all of the law that's necessary for practice, the exam would have to be administered over several months and cover a lot more than it currently does. That's not the point, and it shouldn't be. A uniform bar exam acknowledges the reality that we want lawyers to understand basic legal principles and concepts. Throughout their careers, lawyers have to educate themselves about local law and changes to local law. Knowing those variations at the beginning of one's career shouldn't be a requirement for bar admission. Second, states often have cited the bar exam as a justification for excessive restrictions on multijurisdictional practice. Even with the increasingly widespread adoption of Rule 5.5, states continue to be wary of out-of-state lawyers. The traditional argument against more cross-border practice is that out-of-state attorneys simply do not know local law and should be restricted accordingly. But if in-state lawyers don't have to know local law to become licensed (as is already the case in most states as a practical matter), it becomes a lot harder to justify many of the existing restrictions on multijurisdictional practice. In fact, many existing restrictions may even be unconstitutional
Original post:
Implications of a Uniform Bar Exam
This afternoon in my PR class, I am going to show the 60 Minutes story on Alton Logan, which is the best vehicle I have found for helping students appreciate the stakes of the confidentiality rule. I do not show many videos in class (though “The Hammer” Shapiro TV ads help frame our discussion of lawyer advertising), but now I view the 12-minute Logan clip as a fixture of the course. Are there any other video clips that PR teachers find especially useful for introducing students to the debates surrounding our core professional values?
Read more here:
Is there a "canon" of legal ethics video clips?
The charge to the ABA's new 20/20 Commission is expansive. This is from the press release: “Technological advances and globalization have changed our profession in ways not yet reflected in our ethics codes and regulatory structure. Technologies such as e-mail, the Internet and smart phones are transforming the way we practice law and our relationships with clients, just as they have compressed our world and expanded international business opportunities for our clients.” said Lamm. The ethics commission will review lawyer ethics rules and regulation across the United States in the context of a global legal services marketplace
Visit link:
The ABA’s 20/20 Commission
I take it as a very good sign for the direction of legal education that UC-Irvine's new law school is requiring its entering students to take an interdisciplinary course exploring the lawyer's role. Here's the description: Law 507A – Legal Profession I (2 units) This course, which will be part of both semesters, is designed to prepare students to chart rewarding and responsible careers in law.
Read the rest here:
The lawyer’s role in the first year curriculum
I am delighted to welcome Professor Stephen Gillers as our newest co-blogger. (His first post appears below .) As many readers of this blog know, Stephen is the author of numerous important books and articles on legal ethics, is a frequently quoted commentator on the legal profession, and has been a member of many significant bar committees, including the ABA's recently announced 20/20 Commission . Stephen is the Emily Kempin Professor of Law at NYU Law School, where he teaches Regulation of Lawyers, Evidence, Media Law, and Law and Literature. Of particular note is one of Stephen's lesser known accomplishments: he started blogging before the word “blog” was even invented. This article suggests that he was posting interesting legal ethics commentary on a service called Counsel Connect back in the early 1990's. I don't know if this qualifies Stephen as being one of the earliest law professor adopters of the medium, but we're delighted that he's decided to pick up the habit again by blogging with us. Welcome Stephen!
See the original post:
Welcome to Our Newest Co-Blogger, Professor Stephen Gillers
After six days of jury deliberations, a federal jury in Brooklyn has convicted a prominent New York criminal defense attorney (Robert Simels) and his associate on multiple federal felony counts, including attempted witness tampering. The testimony in the case brought to light many practices (and alleged practices) of criminal defense attorneys, at least in New York. The judge presiding over the case, Hon. John Gleeson, a former federal prosecutor, at one point remarked that for Mr. Simels, encouraging a witness to lie was as simple as “passing a box of tissues.” Many observers are concerned that the verdict will chill zealous advocacy by criminal defense attorneys. The NYLJ story, which is free (no subscription required), is here
Read the original post:
NY Criminal Defense Lawyers Convicted of Attempted Witness Tampering
I just received an email from James Hutchinson of the Legal Services Board in London, stating as follows: Please find attached a ‘discussion paper’ on ‘Alternative Business Structures’ which went out for consultation here in England. It was issued by us, the Legal Services Board: we are the new oversight regulator for the legal profession (a regulator of regulators might be the best way to explain our role)
See the original post here:
England’s proposals for alternative business structures (“ABS”) (= MDP)
In the constitutional challenge to California's Prop 8 (barring same sex marriage), the judge denied a request by gay rights lawyers to intervene in the case and granted an intervention request by the City of San Francisco. Story here . I find these cases interesting because they highlight the difficulties that arise when cause lawyers have such broad freedom over the suit — far more freedom than is exercised by lawyers with natural person clients.
Excerpt from:
Which cause lawyers control the case? (Gay rights lawyers not allowed to intervene in Prop 8 challenge)
Seriously. This program sponsored by the ABA's Rule of Law Initiative is seeking legal ethics teachers to spend 6-12 months working on legal education reform in Kosovo: American Bar Association, Rule of Law Initiative-Kosovo, Legal Education Reform Specialist (6-12 months, Fall 2009) (Pristina/Mitrovica, Kosovo) The Legal Education Reform Specialist will be responsible for implementation of legal education reform activities with the University of Pristina – in both Pristina and Mitrovica.
Here is the original post:
Teach Legal Ethics in Kosovo
In the memorable last episode of Seinfeld , the lead characters get arrested in Massachusetts and sent to jail for failing to help someone who was getting carjacked. The storyline seemed a little far fetched, but then again, it was Seinfeld. And it was funny. It turns out that the script would have worked even better for a legal drama set in Vermont, at least after next month. Starting September 1, 2009, lawyers will violate Rule 1.6 if they fail to to reveal confidential client information when they reasonably believe disclosure is necessary (1) to prevent the client or another person from committing a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, a person other than the person committing the act; or (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; or (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
Link:
Seinfeld, Vermont, and Rule 1.6
A federal district court has held that several provisions of Louisiana's advertising rules, which were to take effect in October, are unconstitutional. The opinion is here . The provisions that were struck down were Rules 7.5(b)(2)(C) (containing a requirement to disclose non-lawyer spokesmen), 7.6(d) (governing computer accessed communications concerning a lawyer's services), and 7.7 (as it pertains to filing requirements for internet advertising). The language of the rules that were struck down can be found here and here .
Follow this link:
Court Strikes Down Several Louisiana Advertising Rules
To be fair this is not what I did on my summer holidays, but “what I did for work this summer” isn't quite as catchy. In any event, what I did was read Tim Dare's wonderful new book, Counsel of Rogues? A Defence of the Standard Conception of the Lawyer's Role (publisher's link here ) . Dare is a professor of philosophy (who also has a law degree) at the University of Auckland in NZ. The notable features of the book are both philosophical anad practical. Philosophically Dare engages with Rawls' conception of the defensibility of role morality and Applbaum's critique of Rawls, and provides a robust defence of the idea that role morality is possible and changes how we assess those who act within morally justified roles. Practically Dare argues that the lawyer's ethical obligation is one of “mere-zeal” not “hyper-zeal” and that lawyers' acts can be justified or criticized depending on where they fall on that spectrum. Dare also suggests that the morality of a lawyer's life cannot be understood solely through the single role of “lawyer” and that an ethically rich life encompasses one's acts in a variety of roles, whether as lawyer, law reformer, or otherwise.
See more here:
What I did on my summer holidays
[Here's a proposed session for the Fourth International Legal Ethics Conference. If others would like to propose sessions and use the blog to locate potential collaborators, please send a blurb like this to wbw@cornell.edu ] The idea that a lawyer owes a duty of loyalty to her client, with the correlative obligation to avoid conflicts of interest with that client, is foundational to the ethical identity of every lawyer.
See the original post here:
ILEC4: Panel on Duty of Loyalty and Conflicts of Interest
(That's ILEC4, for those of you who are fond of acronyms.) The Stanford Center on the Legal Profession has put out a call for papers for the Fourth International Legal Ethics Conference, to be held July 15-17, 2010, in Palo Alto, California. The theme is “Legal Ethics in Times of Turbulence.” According to the call for papers, topics that fall under the conference theme include (without limitation), the advocate's role, conditions of legal practice, bar regulatory structures, access to justice, diversity, cause lawyering, client relationships, conflicts of interest, and globalization. Long-time readers will recognize this conference as the next in a biennial series of conferences that have taken place in Exeter, England; Auckland, New Zealand; and Gold Coast, Australia. As an attendee of all of these conferences, I have been excited to see them grow in scale and prominence. The last conference, ILEC3, has led to several volumes of conference papers, the first of which will be published later this year by Routledge. The conference organizers have suggested two different tracks for submission, individual papers and proposed sessions with multiple participants. Individual paper proposals should be submitted directly to the conference organizers, but maybe readers of the blog will find it useful to propose session topics here in the comments. Alternatively, we can post panel proposals separately on the blog, as I will do now with Richard Devlin's session on conflicts of interest. In any event, proposals are due October 1, 2009, with priority given to submissions received before September 1, 2009. Just to be clear, I am not playing any organizing role in this conference. Questions should be addressed to legalprofession@law.stanford.edu .Â
More here:
Fourth International Legal Ethics Conference
Vulnerable Populations and Economic Realities: An interdisciplinary approach to law teaching Golden Gate University School of Law and the Society of American Law Teachers—SALT—are presenting a two-day teaching conference in San Francisco on March 19/20, 2010. This event will bring together new data and theories from the social sciences, communications and media, and legal education about our most vulnerable populations for use in law teaching across the curriculum. The conference will explore questions such as: how can law teachers integrate economic issues precipitated by class, race, and gender into a broad range of courses, including, for example, first-year Contracts or Professional Responsibility, Health or Environmental Law, Clinics and Externships
Follow this link:
Call for Papers
George Kuhlman , the ethics counsel and associate director of the ABA's Center for Professional Responsibility, reports that the ABA approved important housekeeping amendments to Model Rule 1.10 this afternoon as part of the annual conference consent calendar. The amendments, which you can see in this document , make clear that the recently adopted screening provision in Rule 1.10 applies only to laterally hired attorneys.
Read more:
ABA Approves Housekeeping Amendments to Rule 1.10
The ABA is about to undertake its first comprehensive review of the Model Rules of Professional Conduct since the Ethics 2000 Commission . The new effort, which is called the Ethics 20/20 Commission, will focus on issues related to globalization, including whether to allow multidisciplinary practice. (The ABA's MDP Commission had endorsed MDP earlier this decade, but considerable political opposition within the ABA's House of Delegates doomed the Commission's proposal.) Here is a brief description of the new Commission's work, which appeared in the August issue of the ABA Magazine : ABA President-elect Carolyn B.
More here:
New ABA Commission to Review the Model Rules
Public Citizen, which is leading a challenge to various provisions of Louisiana's proposed new Rules of Professional Conduct governing lawyer advertising (due to take effect October 1, 2009), has filed a second motion for summary judgment ( here ) in the Eastern District of Louisiana. The argument is on July 29th in federal district court in New Orleans. BTW, Brian Wolfman, who worked at Public Citizen for many years and was instrumental in prosecuting this and other challenges to restrictive lawyer advertising rules, recently joined the faculty at Georgetown University Law Center, where he will serve as a co-director of the GULC's Institute for Public Representation (IPR) and will head IPR's Civil Rights Clinic. Good luck, Brian!
Link:
Plaintiffs’ Summary Judgment Motion in Challenge to Louisiana’s Proposed Advertising Rules
I have been wondering whether the public-record exception will (and maybe should) be interpreted much more broadly than in the past, in view of the ready availability of information on the internet. Here is a BNA report of a recent opinion that narrows the public-record exception considerably, in a way that I was not previously aware of. Client Secrets May Include Matters of Public Record An attorney's aggressive use of sensitive information against a former client violated the rule against divulging client confidences even though the information was arguably a matter of public record, the Iowa Supreme Court made clear June 5 ( Iowa Supreme Court Attorney Disciplinary Bd
Read more:
Public-Record Exception to Confidentiality
On July 1, 2009, Wisconsin became the first jurisdiction to adopt a version of ABA Model Rules 3.8(g)-(h), which impose new duties on prosecutors who receive evidence creating a reasonable likelihood — or clearly establishing — that a defendant was convicted of an offense the defendant did not commit. Wisconsin's modifications to the ABA Model Rule are slight and do not significantly weaken it. Importantly, the petition to adopt Rules 3.8(g)-(h) was filed by the Wisconsin District Attorney's Association. Moreover, every entity that testified or submitted comments on the proposed rule, including the Wisconsin Department of Justice, supported the adoption of ABA Model Rules 3.8(g)-(h) or some variant on them. The Wisconsin Supreme Court's Order includes both a brief “Wisconsin Comment” and unaltered Comments 7-9 to ABA Model Rule 3.8. (The Court notes that the Comments are “not adopted, but …
Read the rest here:
Wisconsin adopts slightly modified ABA Model Rules 3.8(g)-(h) effective July 1, 2009
Our recent discussion on the merits of the Mass. exception permitting disclosure to prevent wrongful incarceration got me thinking about the issue of disclosure to prevent client suicide. Based on what I could discover, in Massachusetts, like in Alberta, a lawyer can only disclose where it appears that the client is incompetent or mentally unstable (2001 opinion, here ). I presume such disclosure is permitted under ABA MR 1.6(b)(1) and in those states where there is a crime exception and suicide is a crime. The commentary to the Alberta rules include the following comment: “A lawyer should, if possible, discuss with the client whether the lawyer may disclose an apparent intent to commit suicide and, if so, to whom….The circumstances supporting an implicit authorization to disclose an intended suicide will be exceptional
View original post here:
Confidentiality and client suicide
The WSJ Law Blog has this fascinating story about a criminal conviction of a government official that was secured mostly through the prosecutor's use of an audio recording of the defendant that was made in violation of California's “no contact” rule. The trial court judge, Andrew Guilford, a former president of the State Bar of California, declined to suppress the tape recording. The lack of a remedy for the ethics violation is now a critical issue on appeal
Read the rest here:
Secret recordings and California’s "no contact" rule
It's a long simmering question . Pre-enactment, does the body that urges widespread adoption of a set of model rules grant a license to others? Post-enactment, does the authorship in the model rules merge with the law itself such that no copyright exists anymore?
Judges and "Invidious" Discrimination Wednesday, June 24th, 2009In response to John's post last week on Sotomayor and the Belizean Grove, I posted a comment suggesting that maybe she was right to claim that resignation was not required. The 2007 version of the Model Code of Judicial Conduct has a provision on discriminatory organizations which states that “[a] judge shall not hold membership in any organization that practices *invidious* discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.” CJC, Rule 3.6(A). Comment [2] to Rule 3.6 says that whether an organization practices invidious discrimination depends on, inter alia, “whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members …” In my view, the text of this rule differentiates between invidious and what might be called remedial discrimination.
Excerpt from:
Judges and "Invidious" Discrimination