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.

Judge should have removed juror for bias: New Jersey Appeals Court

Adam Liptak recently  reported in the New York Times that racial strike patterns in jury selection is widespread – and often without consequence.

In the days before Batson v. Kentucky(1985) when I was trying cases for the Public Defender and Joseph Donahue was an Assistant County Prosecutor in Newark New Jersey we (defenders and prosecutors) with scarcely a second thought peremptorily struck jurors on the basis of their race and gender.  Blacks were routinely stricken by the prosecutors, and we struck anyone who had a third cousin who was a cop, or was Italian from a town we considered racist.

When we once got the bright idea to object – in a case where Joe (now Judge) Donohue was the prosecutor – the judge brushed our objection aside saying “I will not have attorneys in my courtroom accusing each other like that”.   Now –  over 30 years later – an Appellate Division panel in New Jersey has reversed car jacking convictions won in Donohue’s courtroom,  In a pointed message they instructed the judge and prosecutor that a casual attitude toward racial prejudice is unacceptable.  The lesson is as apt for civil cases as it is for criminal cases.

The harm of sterotyping is not merely to the parties – plaintiff or defendant.  As Louisiana attorney James Doyle argued to the Supreme Court in Edmonson v. Leesville Concrete [501 U.S. 614 (1991)] the insult, the equal protection violation, extends to the excluded juror, as this film from the Annenberg Center explains.

The Rules of Professional Conduct provide little guidance. In fact the Comments to MRPC 8.4 specifically state that a judge’s finding that a peremptory challenge was “exercised on a discriminatory basis does not alone establish a violation of this rule.”  Does such a soft touch explain in part Judge Donohue’s “we all have some prejudice in us” approach?

– gwc

Source: OTHERWISE: Judge should have removed juror for bias: New Jersey Appeals Court

The Appellate Division of the  Superior Court in State of New Jersey v. Brown the Appellate Division has reversed two convictions for first degree carjacking

“because the trial judge failed to remove a deliberating juror who disclosed her racial bias to two of her fellow jurors and to the judge. Specifically, on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was “concerned” and “nervous” because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, “[t]hey certainly don’t live around there, and they don’t hang around there.” Juror 5, who works in that area, agreed that this seemed strange because that area “mostly is Italian and White people. There really are no Black people around there.” Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial.”

Jurors 5 and 12  enouraged her to express her concerns – which she did to the Sheriff’s officer who advised the judge Joseph Donohue.  After perfunctory questioning of jury number 4 the judge ruled on the motion to remove the juror, saying in open court in the presence of the jury:

I want to make one comment, and I’ve already ruled on this, but in terms of creating the record, there’s been an expression by [Juror 4] — and also [Juror 5] to a certain extent – – expressed some racial consciousness and potential racism by their comments. However, what they both said was that the circumstances were unusual, that the area in which they were, it would be unusual for someone who was Black to be in that area. I can’t say — I can’t say that myself. I don’t know whether any counsel can say it, but these individuals said that that was unusual. And [Juror 4] expressed some initial concerns with it. I don’t think that that’s even an expression of racism. [(Emphasis added).]

The Appellate Division harsh in its assessment of the judge:

These remarks coming from a sitting judge in a criminal trial are plainly inappropriate under any circumstances, but especially when they are uttered in a trial involving two African American defendants. A juror’s expression of “racial consciousness and potential racism” must be immediately repudiated, and the juror must be removed from the jury. Thereafter, the trial judge must conduct a thorough, comprehensive, and probing investigation to determine what influence the juror’s noxious sentiments had on other jurors. Here, the judge’s voir dire of Jurors 3, 5, and 12 was completely inadequate and fell far short of what was required.
“When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based solely on the race of the participants, she revealed a deeply rooted, latent racial bias that required her removal from the jury… Her initial instinctive, subliminal association of race with criminality or wrongdoing far trumped her subsequent assurances of impartiality.”

Read more: http://www.njlawjournal.com/id=1202736097797/Judge-Should-Have-Removed-Racially-Biased-Juror-Court-Says#ixzz3kRKqYdd

Lawyer Suspended for Breaching Confidentiality, Among Other Missteps

A Colorado lawyer was suspended from the practice of law for 18 months after disclosing confidential information about his clients in responding to their Internet complaints about his fees or services.  According to the disciplinary order, the lawyer responded to the complaints “with Internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.”  This type of disclosure of confidential information is not covered by any  exceptions to confidentiality in Rule 1.6(b).  In addition, the lawyer sued the clients for defamation and communicated directly with them, even though their lawyer had repeatedly asked him to stop contacting them.  The order states that this violated the anti-contact rule, Rule 4.2.  A story in the ABA Journal about the discipline case is located here.

Third Circuit affirms lower court opinion finding Pennsylvania’s reciprocity admission rule constitutional

The Third Circuit recently affirmed the lower court’s opinion that found Pennsylvania Rule of Admission 204 constitutional.  This rule allows experienced attorneys to be admitted to the Pennsylvania bar without taking the Pennsylvania bar exam provided they are barred in a “reciprocal state,” that is, a state that similarly admits Pennsylvania attorneys by motion without requiring them to take that state’s bar exam.

Regulator(s) for English barristers approve changes to the “cab rank rule” regarding the “duty to accept” cases

The Bar Standards Board (BSB) is the “frontline” regulator for barristers in England and Wales; the overarching regulator is the Legal Services Board (LSB).

Yesterday the LSB approved a proposal from the BSB to change the “cab rank rule” which says, in essence,  that barristers are required to accept clients who request their services.  (In other words, they are similar to “taxi cabs” and have to accept the person who “hailed” their services.)

The new rule allows barristers to refuse work from a professional client who, in the reasonable opinion of the barrister, presents an unacceptable credit risk.  (The previous rule only allowed barristers to decline work from solicitors on a specified list.)  For information on the history of this rule and the consultations, see here and here.

For those teaching Professional Responsibility, the English cab rank rule, even as amended, can be contrasted with the ABA Model Rules.  The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments. (Rule 6.1 encourages but does not require the acceptance of a certain number of pro bono cases).

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext

Prosecutorial discretion is a principal driver of disparities in law enforcement in the U.S.  But behind that is often police discretionary enforcement.  The U.S. Supreme Court has virtually blocked challenges based on racial or ethnic disparate impact absent rigorous proof of discriminatory intent.   Since Washington v. Davis(1976) more than “volition” or “awareness of consequences” is required to prove purposeful discrimination.

Dean Johnson therefore sees little reason to expect courts to address the racially disparate impacts of deportation enforcement which is driven for many reasons by the ordinary criminal justice process.  Legislators are more likely to be responsive, he suggests.  Is it unrealistic to hope that prosecutors and defenders could be drivers of a campaign to improve our record on the principle of treating like cases alike? Is RPC 8.4’s command against “conduct prejudicial to the administration of justice”  a tool against discrimination?  Or is it limited to purposeful “bias” in the Washington v. Davis sense?  – gwc 

OTHERWISE: Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext.

by Kevin Johnson (Dean, UC Davis Law School)

The U.S. immigration removal system targets noncitizens who are involved in criminal activity.  Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse).  State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police.  Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals.

Bloomberg Business Article – “Are Lawyers Getting Dumber?”

The cover story in this week’s Bloomberg Businessweek, titled “Are Lawyers Getting Dumber?” covers last year’s dispute between the National Conference of Bar Examiners and law school Deans on whether the 2014 bar exam was too hard, or the students too unprepared.  Always interesting when legal ed hits mainstream media.

Ohio Ethics Board Says Judges May Not Refuse to Perform Same Sex Marriages

Ohio Ethics Board Says Judges May Not Refuse to Perform Same Sex Marriages.

The Supreme Court of Ohio’s Board of Professional Conduct has issued advisory opinion 2015-1.  The Board concludes that in its opinion “A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs. ”

In the opinion of the Board the oath of office to uphold the state and federal constitutions, and the Code of Judicial Conduct’s injunction to comply with the law (Jud. Cond 1.1) ) act fairly and impartially (Jud. Cond. R. 2.2), and act without “bias of prejudice (Jud. Con. 2.3) compel the conclusion that a judge may not refuse to perform same sex marriages while performing heterosexual marriages.

One conservative Catholic, Richmond law prof Kevin C. Walsh laments at Mirror of Justice blog that the opinion turns the judicial authority to perform marriages into a mandate.  He further objects that the Ohio Board’s opinion “gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that “[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.”

The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges “apply the law without regard to whether the law is ‘popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'” Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges’ personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.”

Walsh’s lambastes would be well founded, in my view, if a judge were asked to bless a same sex union contrary to her belief that such conduct is sinful.  But of course the Board said no such thing.  At the root of Walsh and like-minded critics’ view is a confusion of the sacred and the secular.  The performance of a marriage is a ministerial, not a Ministerial function.  Judges like other public employees cannot pick and choose among favorites based on legally irrelevant criteria.  If the issue were granting permits to march  based on the religious or anti-religious message of the march Walsh, et al. would certainly agree that a judge cannot pick and choose.  But marriage evokes a different set of emotions and Walsh loses sight of the basic point.- gwc