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.

OTHERWISE: Judge Rakoff Speaks Out at Harvard Conference: Full Speech | Big Law Business

by Jed Rakoff, D.J. (SDNY)
“…Of course, even lawyers devoted to the Fourth Principle may have different views as to what societal issues are of such central concern that lawyers should feel a professional responsibility to speak out about them. Nevertheless, I want to suggest one such issue, and I submit that it is one that is so deeply connected to the administration of law that even a Whitney North Seymour would have no difficulty seeing it as an appropriate subject for bar association resolutions and the like: and that is the issue of mass incarceration in our country today.

via OTHERWISE: Judge Rakoff Speaks Out at Harvard Conference: Full Speech | Big Law Business.

Discussion of California proposed ethics opinion on e-discovery and the duty of competence

by Prof. Alberto Bernabe
As you know by now, I am sure, the comment to Model Rule 1.1 on competence has been amended to state that the duty of competence includes the duty to be knowledgeable about “technology.”   And that probably includes “e-discovery.”Enter California’s Proposed Formal Opinion 11-0004, a proposed opinion, not yet adopted by the rules committee, that discusses the issues that arise when an attorney who doesn’t know anything about e-discovery suddenly finds himself facing e-discovery problems that have crept into his case. It suggests that litigators should have minimal competence in e-discovery and may be violating their duty of competence if they do not either become competent or bring in someone who is competent.  Go here for a discussion of this important Opinion.

via OTHERWISE: Professional Responsibility Blog: Discussion of California proposed ethics opinion on e-discovery and the duty of competence.

PR Last Day of Class Review – Group Exercise

My PR class @ Wake Forest this semester was front-loaded, ending before the MPRE. For our final class review, I tried a new group activity that worked very well.  (We do lots of group work and projects in my flipped class.)

First, I prepared four sets of high-level review questions, with a focus not on the ticky-tacky details of the Rules, but on reviewing/connecting broader topics and issues.  Each set had six questions.  During our in-person, face-to-face class, I divided our class of about 50 students into 8 groups, with 6-7 people per group.  I named the groups Team A-1, A-2, B-1, B-2, C-1, C-2, D-1, and D-2.

Teams A-1 and A-2 received the same set of questions, as did B-1 and B-2, C-1 and C-2, and D-1 and D-2.  I then asked the Teams to select the one question that the Team could agree was the hardest.  Team A-1 then gave Team A-2 their question to answer, and vice versa.

As always, I circulated the class while the Teams were working and answered questions, engaged the students, and raised issues.  We then reviewed as a class those questions that were selected.  I was very interested to discover that no teams selected the same question as the “hardest.”

The students’ feedback after class indicated that this was a very helpful exercise for several reasons: (1) giving them a sense of “bigger picture” ideas before the exam (and MPRE); (2) making connections they had not previously recognized; (3) building confidence in the areas in which they felt proficient at the time; and (4) providing a set of questions for review and thought before the exam.  I plan to use this exercise again.

I’m happy to share the question sets to any who are interested; feel free to email me: murphyme@wfu.edu.

Florida Bar Adopts New Professionalism Expectations

The Florida Bar Board of Governors adopted a new set of “Professionalism Expectations” on January 30, 2015. These Expectations  are divided into seven categories:

1. Commitment to Equal Justice and to the Public Good;

2. Honest and Effective Communication;

3. Adherence to a Fundamental Sense of Honor, Integrity, and Fair Play

4. Fair and Efficient Administration of Justice;

5. Decorum and Courtesy;

6. Respect for the Time and Commitments of Others; and

7. Independence of Judgment.

The vast majority of the expectations are expressed as “should” or “should not” which is to signal, as stated in the Preamble, that these are recommendations of correct action rather than matters covered by the Professional Rules of Conduct. A few of the expectations are stated as “must” or “must not” to indicate that they correlate with the Rules.

For a full copy, see here:

I am not convinced that this additional layer of recommendations will add much to the professionalism of Florida Lawyers, but let’s see.

Why We Need Law Schools – Noah Feldman – Bloomberg View

By Noah Feldman

Who needs law school? For centuries, the answer in the English-speaking world was: no one. You prepared for the bar by serving as an apprentice or an intern alongside practicing lawyers. Sure, you had to read a lot of cases. At first, they probably made no sense. But over time, you learned by watching and doing to connect the decisions in the books with real cases and real clients.

Today there’s renewed talk of returning to a world where you could join the bar after extended internships rather than formal legal study. I’m a law professor, so you’d expect me to defend the current system.

Before I do, however, let me make a big admission: Law school isn’t really necessary for lawyers or their clients. Practicing lawyers could, if they had the time and inclination, train interns to become excellent practitioners who fulfilled their obligations to their clients more than adequately. In fact, at big law firms in big cities, and smaller firms everywhere, partners and senior associates still do spend a lot of time informally training junior associates. If they didn’t, the junior lawyers wouldn’t be very good.

Graduating from law school, even having learned everything the professors have to teach, doesn’t prepare you to practice at a high level. Lawyering is an art, not a science. And the only way to learn an art well is by doing it. Yet law school is absolutely essential — not for lawyers with clients, but for our society as a whole. The reason has everything to do with what makes law distinct as a social phenomenon.”

Read More

via OTHERWISE: Why We Need Law Schools – Noah Feldman – Bloomberg View.

Willingham Prosecutor Accused of Misconduct // The Marshall Project

In a major turn in one of the country’s most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.

Following a preliminary inquiry that began last summer, the bar this month filed a disciplinary petition in Navarro County District Court accusing the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar investigators charged.

via OTHERWISE: Willingham Prosecutor Accused of Misconduct // The Marshall Project.