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.

ABA Commission issues Draft Regulatory Objectives

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.

Florida Bar Rule Barring Truthful Statements About Law Firm or Lawyer Specialty or Expertise Violates 1st Amendment, Federal Judge Holds

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.

Okay to Advise on Setting Up Medical Marijuana Business? States Differ

On the heels of a recent disciplinary decision finding that the Hawaii Rules of Professional Conduct prohibit attorneys from counseling clients to commit a crime or assisting in a crime – specifically that lawyers can’t provide legal services to help set up a medical marijuana business – the Hawaii Supreme Court is seeking comments on a proposed rule change to allow lawyers to counsel clients on conduct permitted under state law, but prohibited under federal.  More here from Law360.  More on how other states have approached the issue (inconsistently) here.
H/T to Marilyn Forbes Phillips @ Duke Law.

Jury Deliberations Begin in Dewey & LeBoeuf Accounting Fraud Case

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.

Indiana Ethics Opinion on Confidentiality and Mandatory Child Abuse Puzzling

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.

Lynn Walker Huntley, Lawyer in Prominent Civil Rights Issues, Dies at 69 – The New York Times

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

Source: OTHERWISE: Lynn Walker Huntley, Lawyer in Prominent Civil Rights Issues, Dies at 69 – The New York Times

by David Stout

Lynn Walker Huntley, a lawyer who was deeply involved in a wide spectrum of civil rights cases and causes, including capital punishment, race relations and employment discrimination, died Aug. 30 at her home in Atlanta. She was 69.
The cause was cervical cancer, her husband, Walter Huntley, said.
Ms. Huntley was at various times an official in the Department of Justice, general counsel to the New York City Commission on Human Rights, a lawyer for the NAACP Legal Defense and Educational Fund, a scholar and program director for the Ford Foundation and president of a charity that works to improve education for children.
“We must continue to struggle against racism, sexism and other forms of oppression, not only because it is the right thing to do, although it is,” Ms. Huntley once said. “We must continue to struggle because to give in and give up is to ensure that all is lost and to betray what we stand for.”
Ms. Huntley spoke those words early in her tenure at the Southern Education Foundation, whose mission is to raise educational standards in the South, especially for black children and those from poor families. Ms. Huntley joined the foundation in 1995 and in 2002 became its first female president. By the time she retired in 2010, she had raised more than $44 million and doubled its endowment, the organization said.

Posner’s Passion Sparks Dispute on Judge’s Use of Internet Research // Rowe v.Gibson 7th Circuit

Source: Posner’s Passion Sparks Dispute on Judge’s Use of Internet Research // Rowe v.Gibson 7th Circuit

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