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.
by Bruce Greenberg
Templin v. Independence Blue Cross, ___ F.3d ___ (3d Cir. 2015). “A party seeking attorney’s fees under ERISA [the Employees Retirement Income Security Act] must show ‘some success’ on the merits. Here, the District Court incorrectly defined ‘some success’ by requiring evidence of judicial action.” So began Judge Nygaard’s opinion for the Third Circuit in this case. The panel reversed the denial of attorneys’ fees to plaintiff and remanded to the District Court for consideration of the fee application under the proper criteria.
Plaintiffs (two individuals and two pharmacies) sued the defendant insurance companies for improper denial of benefits under ERISA. After the District Court denied defendants’ motion to dismiss, defendants paid the claims and the case was dismissed. Both sides sought attorneys’ fees, but both the District Court and the Third Circuit denied both fee requests. The Third Circuit left one issue to be resolved: whether plaintiffs were entitled to interest on the delayed payment of benefits. The case was remanded to the District Court on that issue.
Nebraska Lawmakers Vote To Abolish Death Penalty With Veto-Proof Majority.
Seven years ago I predicted that New Jersey’s legislative repeal of capital punishment would be a herald of change. At a one day symposium I organized (proceedings here, key resources here) we heard from prosecutors, defenders, legislators, the Governor, and the citizen group which mobilized to bring about the change. It was a great example of the dynamic relationships between courts, elected officials, and citizens. “Legislation, litigation, reflection, and repeal” was the title. The theme was “justice cools the fierce glow of passion by passing it through reflection”. That is what has happened in Nebraska, which will soon merit the illumination of the colosseum in Rome, as did New Jersey in December 2007.
As is now well known we hold 25% of the world’s prisoners. That is the legacy of slavery and racism. Movements like Right on Crime reflect a national move away from mass incarceration – too little, and late – but important and necessary if we are every to overcome our history. – gwc
Russell Stetler and Aurelie Tabuteau trace the background to the ABA Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases in The ABA Guidelines – A Historical Perspective, 43 Hofstra L. Rev. 731 (2015), and highlight the critical role of the Guidelines’ focus on teamwork, both as an approach to capital defense generally and to coordination between successive levels of “teams” (i.e., the continuing duty) in a case. Here’s an abstract:
Posted by Karen Tani
I’ve been really looking forward to this new release, from Cambridge University Press: Women and Justice for the Poor: A History of Legal Aid, 1863–1945, by former guest blogger Felice Batlan (Illinois Institute of Technology/Chicago-Kent College of Law). Here’s the abstract:
This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women’s history in dialogue, it demonstrates that nineteenth-century women’s organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor.
In a speech to members of the corporate defense bar group Lawyers for Civil Justice retired Justice John Paul Stevens called for compensation for those held at Guantanamo without cause. Describing Congress’s actions to block closure of Guantanamo as “even more irrational than the detention of Japanese citizens” in WW II Stevens calls for a change in legal doctrine.
While embracing Justice David Souter’s dissent in Ashcroft v. Iqbal Stevens called for a change in doctrine. Government should be liable under respondeat superior for constitutional violations, while affording personal immunity to policy-makers like Attorney General John Ashcroft who were presumably acting from patriotic impulse even if they “encouraged or tolerated improper efforts to obtain information about potential threats”.
The U.S. Supreme Court has ruled in the Williams-Yulee v. Florida Bar case, upholding the Florida Rule which banned judicial candidates from soliciting contributions in their campaigns. Thirty states had similar rules of judicial conduct.
The full opinion can be found here.
This blog post from the “Best Practices for Legal Education” blog and the accompanying comments do a nice job of framing an “allocation of decision-making” issue: