Welcome to the Contemporary Approach to Professional Responsibility Blog


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.

Round 2 DePuy Hip Implant Settlement Proposal Explained

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?
Read More

via OTHERWISE: Round 2 DePuy Hip Implant Settlement explained.

A Snow Day Assignment

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.


Did the CIA Get a Bum Rap on Torture? // David Cole – NY Times

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

via OTHERWISE: Did the CIA Get a Bum Rap on Torture? // David Cole – NY Times.

Foley partner files response to SCOTUS regarding unorthodox amicus brief //Legal Ethics Forum

by John Steele//Legal Ethics forum
Howard Shipley, of Foley & Lardner, responded to the order from SCOTUS that he explain the unorthodox amicus brief that he had filed on behalf of an apparently demanding and idiosyncratic client in a patent case. The amicus brief was jargon-filled, odd in its rhetorical style, and full of super-condensed references. It also suggested that the client was a significant author of the piece — which SCOTUS guidelines suggest should not be included in briefs.

Shipley’s response, available below, politely affirms the right of Shipley to file such an amicus brief and suggests that a technical error (i.e., acknowledging the client’s participation in the drafting) should not be grounds for sanctions. (h/t: How Appealing)

What I find particularly interesting is the way that Shipley’s response, authored by Paul Clement, discusses the balance between the lawyer’s duties to the client and to the court.

via OTHERWISE: Foley partner files response to SCOTUS regarding unorthodox amicus brief //Legal Ethics Forum.

Judge’s DOJ Protest Shows Power of Judicial Independence | New Jersey Law Journal

OTHERWISE: Judge's DOJ Protest Shows Power of Judicial Independence | New Jersey Law Journal.
Judge Rakoff has a reputation for speaking his mind in written opinions, published articles and speeches on issues that concern people who are without political, legal or economic power. While some may view him an outlier, he is a frequent reminder of the positive force of an independent federal judiciary.

Catherine Lanctot, “Becoming a Competent 21st Century Legal Ethics Professor: Everything You Always Wanted to Know About Technology (But Were Afraid to Ask)” //Legal Ethics Forum

OTHERWISE: Legal Ethics Forum: Catherine Lanctot, "Becoming a Competent 21st Century Legal Ethics Professor: Everything You Always Wanted to Know About Technology (But Were Afraid to Ask)".
Article. (Catherine Lanctot’s article, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke Law Journal 147-259 (1999) was one of the first — the very first? — long form article applying the Law Governing Lawyers to lawyers’ behavior in cyberspace.) Abstract of her new article:

This Article provides a roadmap for rebooting the legal ethics curriculum. It describes how to revise a traditional legal ethics class to respond to twenty-first century law practice, and provides a detailed overview of the landscape of technological issues currently affecting the practice of law, including many cautionary tales of lawyers who ignored their ethical responsibilities.

We have finally hit the tipping point with respect to the use of technology within the legal profession, as bar regulators have begun to warn attorneys that they may no longer plead ignorance of technological advances if such ignorance harms the interests of their clients. With technological competence becoming more important for lawyers with each passing year, we do our students a disservice if we do not prepare them adequately for their future in the law.

Legal ethics professors are uniquely situated to impress upon our students the obligation to understand the risks and benefits of technology in the practice of law. But before we can ensure that our students are competent to enter a world of rapid and disruptive technological change, we need to be sure that we are competent ourselves. This may be unwelcome news for many colleagues, especially those who still harbor a little bit of the Luddite spirit that has always been a part of the legal profession.

Integrating ethical issues arising from technology can be readily accomplished if we commit ourselves to carrying out this objective. By embracing the challenge of imbuing our approach to the study of legal ethics with a focus on technological innovation, in both our teaching and our scholarship, we can be important voices at this time of transformation.