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.
Last week the Supreme Court issued a 6-3 opinion affirming the Fourth Circuit’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission. In the decision below, the Fourth Circuit upheld the FTC’s determination that the Board of Dental Examiners violated antitrust law in issuing cease-and-desist letters to non-dentists performing teeth whitening services, finding that the Board acted as a group of private dentists rather than as a state actor. Agreeing with the Fourth Circuit, Justice Kennedy, writing for the majority, observed: “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult for even market participants to discern. Dual allegiances are not always apparent to an actor.” The decision may have implications for state bar regulators, particularly regarding unauthorized practice of law enforcement.
For more about the potential impact of the case on the legal profession, see Ken Friedman’s Forbes article (he’s the VP of Legal and Government Affiars for LegalZoom) and commentary from PrawfsBlawg. (Disclaimer, I assisted in authoring an amicus brief on behalf of LegalZoom and others. I’m also working on a paper about antitrust enforcement and the legal profession—I hope to be posting it soon…)
If you’re teaching conflicts or competence at the moment here are a couple of scenarios to explore, ripped from the headlines over the past week:
- A recent NYT Deal Book column explores the complications and conflicts associated with a marriage between Mary Jo White as she leads the Securities Exchange Commission and her husband John White as he practices law at Cravath, Swaine and Moore. Apparently she’s had to recuse herself from at least 10 investigations involving Cravath representations in addition to cases involving her former firm Debevoise & Plimpton.
- Hillary Clinton’s use of a personal email address for official government business during her time as Secretary of State raises questions about conflicts and security risks. The Legal Ethics Forum blog questions whether this runs afoul of Model Rule 1.1’s duty of competence, which requires in Comment 6 an obligation to be mindful of “the benefits and risks associated with relevant technology.”
These days, law students seem less and less likely to check email on a regular basis. I try to take this into account in my teaching and limit communications to those which are necessary, but in flipped and asynchronous courses, and even in my traditional and blended courses, communication – and motivation – is key.
A year ago, I discovered Remind. Remind is a free service that allows me to communicate with my entire class via text, without the students knowing my phone number or me knowing theirs. And, it allows me to schedule texts in advance, as far out as I want. Students can choose whether to receive the text via phone or email; I give them the option, but tell them they are accountable for the information.
Remind is terrific; students love it, as do I. I assure them that I will not abuse the privilege of using Remind, and I keep that promise. Once the course is over, my last text is: “Grades are turned in!” I highly recommend Remind (and I am not a paid spokesperson).
via OTHERWISE: Round 2 DePuy Hip Implant Settlement explained.
RPC 1.2 binds the lawyer to the client’s objectives (fair compensation in a personal injury case). The client retains the right to cosnsent to settlement-or not. In this law firm website a good job is done of consultation – preparing the ground for the critical discussion with the client.
But at this stage of a mass product liability case a key variable is unknown: what percentage acceptance of the offer will trigger Johnson & Johnson’s payment obligation. That will be key to the selling of the deal. – gwc
On Friday, February 20, 2015, DePuy/ Johnson & Johnson agreed to pay approximately $420 million more to resolve approximately 1400 additional DePuy ASR lawsuits. The order came from the Court extending the settlement offer to Plaintiffs who had revision surgery after August 31, 2013 up through January 31, 2015.
From the beginning of this litigation, almost five years ago, our goal at Childers, Schlueter & Smith has been to prosecute cases aggressively until DePuy accepted responsibility for its actions and offered to settle viable cases, or until viable cases were tried before a jury. While we are pleased that DePuy has proposed a second round of settlements now for certain plaintiffs.
There are a number of very important issues we want all ASR patients to be aware of given this recent proposal:
1) This is not a blanket, one-size-fits-all settlement proposal. DePuy’s proposal set outs specific terms which determine the individual settlement amounts for each person’s case (see below). As we have always maintained, all ASR cases are different. Because of the differences in each case, the proposed settlement amounts for all claimants will be different.
2) The settlement proposal is just that – a proposal – which you are not required to accept. Individual claimants in any case can accept or reject any settlement offer. At CSS, we evaluate each case and determine, as precisely as possible, the amount of compensation you would likely receive under the proposed settlement and whether it makes sense to continue under the program. For most it does, for a few select others it may not.
What are the terms of the settlement?
Yesterday was a snow day in Winston Salem and @ Wake Forest; in addition to my students instructional video assignments for our flipped class, I asked them to “build a snow person and explain the Rule 1.6 exceptions to him/her.” The pictures started rolling in mid-day, and I thought you might enjoy. These students’ sense of humor will take them far in practice.
David Cole has read the Senate Torture Report and finds it is an unsatisfactory political compromise which focuses on effectiveness rather than the illegality of torture – thus letting the political decision makers and the designers of spurious legal defenses off the hook. – gwc
Did the Torture Report Give the CIA a Bum Rap?
by David Cole