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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.

Reject NFL Class Settlement // Erichson

Reject NFL Class Settlement // Howard Erichson
Mass Tort Litigation Blog:

By Prof. Howard Erichson (Fordham Law School)
We have grown so accustomed to “settlement class actions” that we have lost sight of what is strange and troubling about them. Class actions serve an essential function in our legal system by empowering claimants in mass disputes, and I reject the knee-jerk criticisms of class actions that I  hear too often.

But when the class action tool is exploited by defendants to buy peace on the cheap, and when class members are harmed by the alignment of interests between defendants and class counsel, I feel the need to speak up.

Who reached this agreement with the NFL? Not the thousands of former football players.

The deal was struck by lawyers who purported to represent the players but who had not actually gotten the go-ahead to litigate for the class. To litigate a class action, lawyers must get the class certified. But in this case, the lawyers negotiated their settlement before the court certified the class.

via Reject NFL Class Settlement // Erichson.

The 21st Century Lawyer’s Evolving Ethical Duty of Competence | The Center for Professional Responsibility

The 21st Century Lawyer’s Evolving Ethical Duty of Competence | The Center for Professional Responsibility.
By Andrew Perlman
(Andrew Perlman is a professor at Suffolk University Law School, where he is the Director of the Institute on Law Practice Technology and Innovation. He was the Chief Reporter of the ABA Commission on Ethics 20/20 and is the Vice Chair of the newly created ABA Commission on the Future of Legal Services. )

The Duty of Competence in a Digital Age
The ABA Commission on Ethics 20/20 was created in 2009 to study how the Model Rules of Professional Conduct should be updated in light of globalization and changes in technology. The resulting amendments addressed (among other subjects) a lawyer’s duty of confidentiality in a digital age, numerous issues related to the use of Internet-based client development tools, the ethics of outsourcing, the facilitation of jurisdictional mobility for both US and foreign lawyers, and the scope of the duty of confidentiality when changing firms.
One overarching theme of the Commission’s work was that twenty-first century lawyers have a heightened duty to keep up with technology. An amendment to Model Rule 1.1 (Duty of Competence), Comment [8] captured the new reality (italicized language is new):
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
The Model Rules had not previously mentioned technology, and the Commission concluded that the Rules should reflect technology’s growing importance to the delivery of legal and law-related services.
New Competencies for the Twenty-First Century Lawyer
Cybersecurity
Electronic Discovery
In New York, e-discovery competence is now mandated in section 202.12(b) of the Uniform Rules for the Supreme and County Courts:
Where a case is reasonably likely to include electronic discovery, counsel shall, prior to the preliminary conference, confer with regard to any anticipated electronic discovery issues. Further, counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery: counsel may bring a client representative or outside expert to assist in such e-discovery discussions.6
In California, a recently released draft of an ethics opinion covers similar ground and once again emphasizes the importance of e-discovery competence:
Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI.7
Competence is not the only ethical duty at stake. The California draft opinion (like the Massachusetts disciplinary case) observes that the improper handling of e-discovery “can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”8 The opinion concludes that, if lawyers want to handle matters involving e-discovery and do not have the requisite competence to do so, they can either “(1) acquire sufficient learning and skill before performance is required; [or] (2) associate with or consult technical consultants or competent counsel. . . .”
Related issues arise when lawyers advise their clients about social media content that might be discoverable. Recent opinions suggest that lawyers must competently advise clients about this content, such as whether they can change their privacy settings or remove posts, while avoiding any advice that might result in the spoliation of evidence.10 The bottom line is that e-discovery is a new and increasingly essential competency, and unless litigators understand it or associate with those who do, they risk court sanctions and discipline.
Internet-Based Investigations
Internet-Based Marketing
Leveraging New and Established Legal Technology/Innovation
Conclusion

The seemingly minor change to a Comment to Rule 1.1 captures an important shift in thinking about competent twenty-first century lawyering. Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.

NACDL: Widespread failure of `Brady rule’ disclosures in criminal cases

NACDL: Widespread failure of `Brady rule' disclosures in criminal cases.
Today, at the National Press Club in Washington, DC, NACDL is officially releasing its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School.
Today’s event will feature comments by NACDL President Theodore Simon, and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals.
***
Over 50 years ago, in Brady v. Maryland, the Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.
The study’s findings are extensive and dramatic including, for example:
The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.
Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.
Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.
In his dissent to the Ninth Circuit’s 2013 decision denying a rehearing en banc in United States v. Olsen, Chief Judge Alex Kozinski acknowledged that “[t]here is an epidemic of Bradyviolations abroad in the land” which in his view, “[o]nly judges can put a stop to.” Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases documents that epidemic and sets forth a prescription for how to contain and ultimately cure it. As former Deputy Attorney General David W. Ogden wrote in his foreword to this report, “judges have an indispensable role and obligation to oversee the system’s guarantees of fairness and to make sure that its truth- and justice-seeking mission is fulfilled in each case.”

Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility

By William C. Hubbard
William C. Hubbard is the President of the American Bar Association. Mr. Hubbard is a partner with Nelson Mullins Riley & Scarborough LLP in Columbia, South Carolina.

This article is adapted from remarks to staff at ABA headquarters, Chicago, at an event commemorating the 60th anniversary of Brown v. Board of Education and the 50th anniversary of the Civil Rights Act of 1964.

In December 1953, a taxi carried Thurgood Marshall from the Wardman Park Hotel to the U.S. Supreme Court to argue his biggest case, Brown vs. Board of Education. Marshall turned to his co-counsel William T. Coleman and said, “I have to be at my best today.”Marshall said he was going to have to be as good as Henry V at Agincourt, where the young king led his vastly outnumbered forces to victory over the French. The two lawyers knew what the stakes were on that exciting, memorable day. Marshall rose to the occasion, and their work changed history.But has it changed history in the way that the Supreme Court and Thurgood Marshall and William Coleman thought it would? Regrettably, unfinished business is the legacy of Brown v. Board of Education. We need to finish this unfinished business if we are to fulfill the promise of Brown.

via Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility.

OTHERWISE: Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty | The Marshall Project

OTHERWISE: Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty | The Marshall Project.
Today is the first day that The Marshall Project went live. It is an investigative journalism project led by Bill Keller, former Executive Editor of the New York Times. Several of the pieces focus on the death penalty and inadequate lawyering. This excerpt from an interview with A.G. Eric Holder focuses on sentencing disparities and his rejection of the idea that prosecutors should routinely seek to maximize penalties. – gwc

New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors’ office backs them up

OTHERWISE: New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors' office backs them up.
Astonishing that there should be a need for such advice. – gwc

Wal-Mart, Attorney-Client Privilege, and In-House Counsel

This isn’t exactly current news but nonetheless very noteworthy. A Delaware Supreme Court en banc opinion, Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, Del. Supr., No. 614, 2013 (July 23, 2014), explicitly endorsed the Garner exception to the attorney-client privilege in a Section 220 books-and-records proceeding. Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970) recognized an exception “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, [and] protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance.”  Huge victory for shareholders who can show cause, and huge loss for those who think that the attorney-client privilege should be absolute.

Also noteworthy is the resignation of Maritza Munich, the general counsel of Walmart International. Munich had tried to stop a bribery scandal as it was unfolding at Walmart. Michael Scher of the FCPA Blog provides some interesting detail on the scandal and Munich’s resignation.

For teaching purposes, one can construct a hypothetical based on the facts of the Wal-Mart case and ask the student to put herself in the shoes of an in-house attorney (such as Munich) who uncovers serious law violations within her corporation: what would she do? Good opportunity to talk about how to comply with Sarbanes-Oxley 307 (SOX 307) and the meaning of an attorney “appearing and practicing before the Commission” under SOX 307 covers. If you want to add a psychological perspective to the discussion, I talked about the  pressures of being in-house counsel in prior work.