Welcome to the Contemporary Approach to Professional Responsibility Blog

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Welcome! We would like you to join our community as we promote study of, and debate regarding, the professional responsibility of lawyers.  Although our blog will serve as a resource for users of Professional Responsibility:  A Contemporary Approach (2nd. ed 2013), the current developments, innovative teaching materials, and commentary should be thought-provoking and fun for all those interested in the legal profession.  Please feel free to share your ideas and we will post as much as we can.

Meet David Bruck’s Defender // The Marshall Project

David Bruck - capital defender

OTHERWISE: Meet David Bruck’s Defender // The Marshall Project.

Representing an avowed racist, a champion of racial justice.
By ANDREW COHEN

Officials in Washington and South Carolina are still figuring out who will try Dylann Roof first for the Charleston church shooting on June 17. Local prosecutors quickly brought capital murder charges against the self-proclaimed white supremacist, and the Justice Department announced last week that it would bring a broad capital case against Roof centered around the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the federal hate crime law.

The South Carolina case likely will go to trial first — the feds typically defer to local prosecutors except when terror-related charges are involved (and, pointedly, none were brought against Roof). But with this case, the federal trial judge and the first-chair federal defense attorney have already been determined. David Bruck, a 66-year-old, Canadian-born capital expert, who graduated from the University of South Carolina law school, will return to the Palmetto State to tackle yet another challenging assignment representing a high-profile defendant.

One to Watch: Lawyers Email Exchange Threatens Settlement in Decade-Old Antitrust Case

The Wall Street Journal reported this afternoon that a series of emails between two lawyer-friends may impede a $6 billion class-action antitrust settlement between Mastercard, Visa, and millions of merchants. The facts are a “twist,” as the Journal calls them, in the merchants’ price-fixing case against the credit card companies that began a decade ago.

While a partner at Wilke Farr representing Mastercard, attorney Keila Ravelo exchanged emails with former-colleague, friend, and attorney Gary Freidman, who was representing a group of merchants in the class action. (Interestingly, Wilke Farre discovered the emails while investigating Ravelo and her husband for theft of funds from Wilke Farre, among others.) The merchants in the settlement are alleging inadequate representation based on the disclosure of allegedly confidential information in these emails between Ravelo and Freidman.

Blog Discussion of 2nd Circuit decision that Skadden contract lawyers are [potentially] entitled to overtime pay because they weren’t engaged in the practice of law

The Faculty Lounge has a lengthy post discussing the recent Second Circuit decision reversing the FRCP 12(b)(6) dismissal of a potential class action lawsuit by a contract lawyer doing document review for Skadden.  (The story also appeared in a recent ABA e-Journal article.)  The blog post – and comments – are worth reading. (As of this morning, however, I didn’t think the 11 blog comments sufficiently addressed the relationship between UPL laws and the UPL safe harbor provision found in Rule 5.5 and which view of UPL would “trump,” given the fact that in many states, these two stem from different branches of government).

Judge Barbier establishes Common benefit fee committee and guidelines in BP Spill

Just what is a reasonable feeas required by RPC 1.5?  How is it determined in practice?  In the BP Gulf Oil Spill Compensation cases  MDL – in which $5 billion has already been paid out, the “common benefit” fees to the Plaintiffs Steering Committee and those who bore the brunt of the litigation are not yet payable.  Fees must, of course be reasonable.  Judge Carl Barbier here lays out a road map and establishes guidelines for review of fee applications.

Torts Today: Judge Barbier establishes Common benefit fee committee and guidelines in BP Spill.

Judge Barbier Establishes Common Benefit Fee Committee and Issues Guidelines in BP Spill Economic and Medical Compensation Case

PRETRIAL ORDER NO. 59
(Appointment of Common Benefit Fee and Cost Committee and Guidelines for Common Benefit Attorneys’ Fees and Costs Reimbursement)

Even though a formal petition for an award of common benefit attorneys’ fees and reimbursement of costs (“Aggregate Fee and Cost Petition”) likely will not be filed in this litigation until 2016 or later, it is important at this time to begin the process of creating a structure, establishing guidelines, and setting a timetable for the eventual presentation to the Court of an Aggregate Fee and Cost Petition and a subsequent recommendation regarding allocation of the Aggregate Common Benefit Fee and Costs Award among eligible Fee Applicants “Allocation Recommendation”).

BP has agreed to pay up to $600 million in common benefit attorneys’ fees, costs, and expenses, as awarded by the Court.1 Under the Fee Agreement, “[a]ny common benefit Class Counsel fees and costs awarded by the Court will not be deducted from Class Members’ recoveries, but will be paid by BP in addition to other class benefits.” In re OIL SPILL by the OIL RIG “DEEPWATER HORIZON” in the Gulf of Mexico, on April 20, 2010, 295 F.R.D. 112, 126 (E.D. La. 2013), appeal dism’d in part, No. 13-30221 (5th Cir. Feb. 11, 2014). 

SDNY Rejects Jacoby’s Suit Challenging Rule 5.4’s Prohibition on Outside Investment & Nonlawyer Partners

As the ABA Journal reports, the U.S. District Court for the Southern District of New York has dismissed a complaint brought by law firm Jacoby & Myers challenging Rule 5.4’s ban on nonlawyer partnership & outside investment in law firms.  This follows a remand from the Second Circuit. Lawyers for the plaintiffs have said they plan to appeal the decision to the Second Circuit.  The suit, which raises 1st and 14th Amendment arguments, cited ideas discussed by casebook author Renee Knake.

Outside investment in law firms, which is sometimes referred to as alternative business structures or ABS, is available in England and Wales and Australia (and is under consideration in parts of Canada) but remains controversial.  For example, the ABA Commission on Ethics 20/20 circulated a discussion paper on the topic, but in the face of negative reaction announced that it would not consider the issue further.   (See here for my article on the work of the Ethics 20/20 Commission).

Obama, at NAACP, highlights harshness, racial disparities in criminal justice

For many years `lockemup and throwawaythekey’ was the refrain of everyone who sought electoral office.  There has been a shift – left and right – as we realize the tragedy we have created: the world’s most punitive society.  Being one of the most racist societies in history has created a culture that generates violence and perpetrates it, that creates a harsh attitude toward criminal justice.  Barack Obama, the first President to visit a prison(!) discusses the issues at the NAACP annual meeting.

Lawyers and judges have managed America’s criminal justice system, feeding its huge prison archipelago.Of course the voters have been a driving force.  Lawyers and judges have, in the main, implemented the system created by elected representatives. Have we fulfilled our duty to follow the law? Or have we been derelict in our obligation to seek justice? – gwc

OTHERWISE: Obama, at NAACP, highlights harshness, racial disparities in criminal justice.