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.
The ABA Commission on the Future of Legal Services has circulated for discussion a draft Resolution and Report on “ABA Model Regulatory Objectives.” The draft resolution “urges each state’s highest court, and those of each territory and tribe, to be guided by the ABA Model Regulatory Objectives to help (1) assess the court’s existing regulatory framework and (2) identify and implement regulatory innovations related to legal services beyond the traditional regulation of the legal profession.” The ABA’s proposed Model Regulatory Objectives are similar, but not identical, to those included in Section 1 of the 2007 UK Legal Services Act, in Nova Scotia, and suggested by some commentators.
On Wednesday, US District Court Judge Robert L. Hinkle (Northern District FL) found unconstitutional the Florida Bar’s (the “Bar”) rule prohibiting lawyers from truthfully advertising that they are “a specialist, an expert, or other variations of those terms” unless they are board certified by the state, the ABA, or another state with standards comparable to Florida. (Rules Regulating the Florida Bar 4-1.14(a)(4)) The law firm of Search Denney, which included on its website that it specializes in mass-tort and unsafe- product cases, brought the case. The Bar did not dispute that the firm has handled many such cases.
The Bar argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize” or have “expertise” are board certified. The Court found no evidence to support this argument, and even suggested that a better way for the Bar to deal with this concern is to educate the public about board certification, or require a disclaimer. In finding the Rule violated First Amendment protections on commercial speech, Judge Hinkle also noted that the Rule prohibits every lawyer in the state from claiming expertise in any practice area for which there is no board certification, as well as every law firm from claiming any specialties, as there are no board-certifications for law firms.
You may find the Order here.
Yesterday, on September 16, 2015, in the New York State Supreme Court in Manhattan, the jury began deliberating whether the three former executives of the now defunct law firm of Dewey & Leboeuf conspired to manipulate the finances in an effort to defraud investors and bank lenders. In a daring move, defense lawyers chose not to call any witnesses and rested their case. For more detailed information about the trial, it is reported that one legal newswire, Law360, has been live blogging the event. Warning: the testimony “has often been dull and focused on arcane accounting treatments.” Latest news of the trial can be found here. Prior posts can be found here and here.
A new ethics opinion on confidentiality by the Indiana State Bar Association Legal Ethics Committee reaches some puzzling conclusions. The committee considered whether Indiana’s mandatory reporting statute for suspected child abuse or neglect required a lawyer who learns of such abuse or neglect while representing a client must report it. While acknowledging that the Indiana Supreme Court is the final authority on both the law and ethics in Indiana, the committee concluded that a lawyer was not required to report the suspected abuse unless the lawyer believed it necessary to prevent reasonably certain death or substantial bodily harm. While that seems reasonable on its face, the committee made several leaps in reasoning to get there and may have provided some ill advice to lawyers in Indiana.
Unlike some other states, Indiana’s reporting statute does not exempt lawyers from the reporting duty. That means, unless the Indiana Supreme Court would step in and decide that the state’s Rule 1.6 trumps the state law, a lawyer who follows the opinion could be prosecuted for failing to report. In addition, the committee fails to acknowledge that Indiana’s Rule 1.6, like the ABA Model Rule, contains that confidentiality exception “to comply with other law or court order.”
Next, the committee inexplicably reasoned that because of the mandatory reporting law a lawyer must report suspected abuse or neglect “to prevent reasonably certain death or substantial bodily harm” even though the exceptions to confidentiality in Indiana’s Rule 1.6, like in the ABA Model Rule, state that a lawyer may reveal information relating to a client’s representation in order to prevent reasonably certain death or substantial bodily harm.
The ethics opinion may state a good policy position, but the committee goes out on limb by creatively trying to reconcile a lawyer’s ethical and legal obligations in such a situation. As it stands now, there is a direct conflict between the mandatory reporting law and the ethics rules, and the ethics opinion does not resolve this quandary for lawyers in Indiana.
An exemplary lawyer. The first Black woman to be editor of the Columbia Law Review, clerk to Judge Constance Baker Motley, member of the legal team in Furman v.Georgia. – gwc
by David Stout
Judge Richard Posner exhibited an extraordinary passion for justice when he wrote “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.” The prolific 7th Circuit judge was writing in Rowe v. Gibson. The court reversed the grant of summary judgment and dismissal to defendant prison officials who were alleged to have been deliberately indifferent to plaintiff’s medical condition in violation of the cruel and unusual punishment clause of the Eighth Amendment. Rowe claims prison officials callously withheld and administered the medication necessary for care of his reflux esophagitis – GERD.
Like his colleagues Posner found Rowe’s claims sufficient to reverse grants of summary judgment. Posner disputed the credentials of credentials of the prescribing physician – a defendant who testified as an expert in his own defense, in a field not his own. To reach and support his conclusions – and doubtless fueling his anger – Posner conducted his own independent research about the drug commonly known as Zantac. Posner gathered materials from the drug’s manufacturer GlaxoSmith Kline, and widely relied upon authoritative sources such as the National Institutes of Health, the Mayo Clinic, Web MD and Wikipedia in discussing the pro se plaintiff’s physical condition and legal claims.
Posner’s efforts were sharply criticized by his colleague David Hamilton. He took exception to Judge Posner’s reliance on the sources, finding them to be investigations of fact, beyond the scope of what is permitted of a neutral magistrate. – gwc