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.

ABA adopts Model Regulatory Objectives for the Provision of Legal Services

At yesterday’s Midyear Meeting, the ABA House of Delegates adopted Resolution 105, Model Regulatory Objectives for the Provision of Legal Services.  This resolution is a product of the ABA Commission on the Future of Legal Services. (Disclaimer, I am a Reporter for the Commission.)  Coverage from the ABA is here, the ABA Journal is here, and the American Lawyer is here. For information on the purpose of regulatory objectives generally, see Professional Responsibility: A Contemporary Approach co-author  Laurel Terry’s seminal work on this topic, and for more background on the development of the ABA Model Regulatory Objectives specifically, see the Commission’s Report.

Here is the resolution in full:

RESOLUTION

RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016.

ABA Model Regulatory Objectives for the Provision of Legal Services

A. Protection of the public

B. Advancement of the administration of justice and the rule of law

C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems

D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections

E. Delivery of affordable and accessible legal services

F. Efficient, competent, and ethical delivery of legal services

G. Protection of privileged and confidential information

H. Independence of professional judgment

I. Accessible civil remedies for negligence and breach of other duties owed, disciplinary sanctions for misconduct, and advancement of appropriate preventive or wellness programs

J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system

FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.

FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.

(Cross-posted at the Legal Ethics Forum.)

ABA Adopts a Resolution Endorsing the Uniform Bar Exam (UBE)

On Feb. 8, 2016, the ABA House of Delegates adopted a resolution that “urges the bar admission authorities in each state and territory to adopt expeditiously the Uniform Bar Examination.”

This is relevant when teaching Chapter 2 (and also for our students’ futures.) For more information, see the NCBE’s UBE webpage.

ABA Adopts Regulatory Objectives Resolution

On Monday, Feb. 8, 2016, the ABA House of Delegates adopted a revised and amended version of the Regulatory Objectives Resolution.  The original proposal is here.  The language that was added stated:

FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.

In my view, the resolution always was about encouraging jurisdictions to think about “why” they regulate and what they are trying to accomplish, not “what is regulated.”  The Resolution “urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess [regulatory issues].”  I hope that each U.S. jurisdiction will now decide to adopt its own regulatory objectives (and will think about whether it wants to use the ABA’s model objectives verbatim or adapt a variation such as those recommended here, those set forth in this appendix, or those adopted in 2014 in Nova Scotia.)

Reminder that Rule 1.11 Applies to Government Officials and not Only Lawyers

Judge Jesse Furman of the Southern District of New York recently refused to permit a plaintiff in a civil rights action from substituting a new lawyer on the ground that the lawyer was barred under Rule 1.11.  Furman found that lawyer “participated personally and substantially as a public officer” (Rule 1.11) in investigating plaintiff’s bias complaints when lawyer was Senior Director for Equal Employment Opportunity — not a lawyer position — at plaintiff’s employer agency.

A JD Alone Does Not A Lawyer Make (so says the NC State Bar)

 

Teaching MR 1.2? 60 Minutes Offers Some Great Material to Jump Start the Conversation

If you haven’t yet watched 60 Minutes’ recent episode on Anonymous, Inc., you might consider using in class it to spark conversation about Model Rule 1.2(d)’s requirement that:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

The episode features interviews with 16 attorneys by a fictitious client seeking help with money laundering.  Interestingly, only one attorney flatly refused to engage.  Among the rest, we see fascinating clips of their conversations as they weigh whether or not to take on the client. The second half of the show features legal ethics expert Bill Simon discussing the attorneys’ behavior.

Here’s a brief synopsis from the 60 Minutes website:

If you like crime dramas and movies with international intrigue, then you probably have a basic understanding of money laundering. It’s how dictators, drug dealers, corrupt politicians, and other crooks avoid getting caught by transforming their ill-gotten gains into assets that appear to be legitimate.

They do it by moving the dirty money through a maze of dummy corporations and offshore bank accounts that conceal their identity and the source of the funds.

And most of it would never happen without the help — witting or unwitting — of lawyers, accountants and incorporators; the people who actually create these anonymous shell companies and help move the money. In fact, the U.S. has become one of the most popular places in the world to do it.

More coverage below:

Full report from Global Witness, the group conducting the investigation, is here.

ABA Journal, Group goes undercover at 13 law firms to show how US laws facilitate anonymous investment

NY Times, Report describes lawyers’ advice on moving suspect funds

ABA President Paulette Brown responds to 60 Minutes segment here.

LT addition: For an article on US legal profession efforts to combat money laundering, see here  and here for related slides.

D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

Source: D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

The United States District Court for the District of Columbia has released aproposed rule which would codify the government’s discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors and defines for the first time what constitutes “favorable information” under the U.S. Supreme Court’s landmark 1963 decision in Brady v. Maryland the Court there declared that prosecutors have a constitutional obligation to provide the defense with “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” The failure by a prosecutor to disclose appropriate information is often referred to as a “Brady violation.”

In recent years the importance of the rule has been highlighted by the Innocence Project, and the recognition by some – such as former Louisiana Supreme Court Chief Justice Pascal F. Calogero, Jr., who declared that systemic difficulties – including lack of guidance – help to explain the “Brady violations” that underlie some wrongful convictions. – gwc