Submissions and nominations of articles are now being accepted for the fifth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2014. The prize will be awarded at the 2015 AALS Annual Meeting in Washington, DC. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: firstname.lastname@example.org. The deadline for submissions and nominations is September 1, 2014.
The Florida Supreme Court has finally issued a per curiam decision in the much watched case of an undocumented immigrant who sought admission to the Florida Bar.The applicant, Jose Godinez-Samperio, graduated from Florida State University School of Law, and passed the Florida Bar Examination. http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/SMTGT/Are%20undocumented%20immigrants%20eligible%20for%20Bar%20admission%3F
The Supreme Court ruled that unauthorized immigrants are ineligible for bar admission and must show that they are legally present in the United States. Even though the applicant was covered by the Dream Act (DACA) under Federal Law, the Supreme Court found that the State of Florida still needed to take legislative action to permit aliens to receive public benefits, including the granting of a license to practice law. In a passionate concurrence, Justice Labarga notes the injustice of this result as mandated under federal and state law.
The decision is full is found here. http://www.floridasupremecourt.org/decisions/2014/sc11-2568.pdf
Dean of Students and Lecturer
University of Miami School of Law
Spring 2014 will be the first semester that I have used the Pearce, Capra, Green, Knake and Terry casebook. I am still in the process of adapting and figuring out my rhythm for this casebook since I had used my prior casebook for more than twenty years.
One of the things that I appreciate about the current casebook is that my co-authors Russ Pearce and Renee Knake posted their PowerPoint slides on the blog. On the one hand, I found this is extremely helpful. On the other hand, I find it very difficult to use other people’s slides – especially lengthy slides – because it limits my flexibility in the way I teach the class. For example, when I teach Civil Procedure, I use a casebook that has lengthy slides available. But I find that I only use a slide here or there (usually those with good graphics). I prefer to have a file folder of Word documents so that I can keep my flexibility in switching in between documents.
Although I am only at the beginning of Week 2 of this Semester’s Professional Responsibility course, I feel that I am beginning to get a sense of how I will prepare for class. I thought I would share my approach (and PowerPoint slides) in case anyone else would find them useful (especially those teaching from this casebook for the first time).
I teach the course primarily as a statutory course in which we try to figure out what the rules say, how they should be applied, and whether the students approve of the policy choices reflected in the rules. I focus quite a bit on methodology and consider that equally important as the substantive material we are covering. In my experience, students (and lawyers), are not as facile in dealing with statutes as I think they should be. This is one of the reasons why I like to teach using the problem method. After identifying a particular problem, my opening question is usually “how do we tackle this problem?” That question should elicit the correct rule. My second question often asks the students to “eyeball” the rule and try to understand and explain its structure – for example, whether a particular section sets forth a mandatory prohibition, whether it functions as an exception, or whether it is a definition. I will then ask the students to walk us through the particular elements, identifying whether elements are conjunctive or disjunctive. After that, we will turn back to the problem and apply the analysis to the particular fact pattern.
For this reason, I decided that I would prefer to have PowerPoint slides that contained ONLY the questions, rather than a PowerPoint that contains all the material we will use in class. I flip back and forth between the PowerPoint problems and the relevant ABA Model Rule, which I have saved as Word documents. (I prefer using a Word version of a Model Rule to the free online version because it is easier to annotate the Word version plus it includes the comment.)
For this reason, most of my PowerPoint slides set forth the structure of the material we are covering or the discussion problem (but not the choices or the applicable rule). I am happy to share my Word documents Via Dropbox if anyone is interested in them. Just this week, I decided that in the future, I would prepare a second PowerPoint file for each assignment and that this second file would include the case illustrations and video links. By having these in a separate file, I have more control over whether and how they are used.
I hope these observations have been helpful.
U.S. District Judge Kurt Engelhardt granted five former New Orleans police officers new trials after they were convicted for their involvement in the Danziger Bridge shootings and cover-up after Hurricane Katrina. The judge found that the defendants were prejudiced by anonymous internet postings by federal prosecutors before and during the trial. For more on the controversial decision, read Bruce Green’s article, “Two Wrongs Make it Worse in Cops’ Retrial” in The National Law Journal.
President Obama has joined with those who argue that law school should be no longer than two years, with the third year being a time for students to learn practical lawyering skills. Here’s the New York Times coverage.
Once again, defense lawyers are questioning their role in assisting criminal defendants in capital cases where the defendants seek their own execution. Major Nidal Malik Hasan, who faces the possibility of capital punishment in his trial for for the Fort Hood Shootings, has been representing himself. His former lawyers, who have been ordered to sit with Major Hasan and provide him legal assistance as he represents himself, have asked to be relieved on this obligation on the ground that Major Hasan is deliberately manipulating his trial in order to receive the death penalty. They argue that they should be relieved under Sope insert. Major Hasan’s actions raise controversial questions about the death penalty, and an attorney’s scope of representation and allocation of authority under Rule 1.2(a) of the Model Rules of Professional Conduct. The case is reminiscent of the infamous Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436 (1976), where the defendant, resigned to his fate desired to receive the death penalty by firing squad. To read more about Major Hasan’s military trial read the following New York Times articles by Manny Fernandez titled, “Judge Denies Ex-Defense Team’s Bid to Limit Role in Fort Hood Suspect’s Trial,” and, “Lawyer Says Fort Hood Defendant’s Goal Is Death.”
US Attorney John Craft, of the Eastern District of Texas may have run afoul of the scope of prosecutorial ethics rules when making Facebook comments and posts regarding President Barack Obama, and Trayvon Martin. Neither of the comments were a direct violation of Rule 3.8 and Rule 3.6 addressing trial publicity, because they were not made in direct response to a matter Craft, or the Eastern District of Texas were working on. But, Craft may have indirectly violated Rule 3.8(f) as a US Attorney, because of Attorney General Eric Holder’s public statements that the Department of Justice would continue their ongoing investigation of the Trayvon Martin incident after the controversial verdict, and his statements that the Department of Justice’s would also continue to challenge voting rights cases most notably in Texas, in addition to the DOJ’s defense of The Affordable Care Act or “ObamaCare”. This means Craft may have violated prosecutorial ethics by making extrajudicial comments in a public manner that prejudices these pending matters, in violation of both Rules 3.8 and 3.6. For more on this matter read Debra Cassens Weiss’s article on the ABA Journal’s website titled “Assistant US attorney’s derogatory Facebook comments about ‘Dalibama’ and Trayvon Martin are probed.”
When do judicial statements made to jurors after their verdict go too far? To read more about the ethics of judicial statements made to jurors after an acquittal, check out Joe Patrice’s article on abovethelaw.com titled “When Judges Attack! Judge Rips Jury For Not Guilty Verdict”.
An interesting article by Jan Jacobowitz. Available here.
By Laurel Terry
On March 25, 2013, the Law Society of England and Wales issued a statement that joint representation of the buyer and the lender in a property sales transaction is acceptable and provides the best value for money for clients. See http://www.lawgazette.co.uk/news/society-sticks-joint-representation-homebuyers#comments . (For more background, see http://www.lawsociety.org.uk/advice/articles/separate-representation/. ) In taking this position, the Law Society explicitly rejected the position taken the previous week by the Law Society of Scotland, noting that the “regulatory environment and market conditions are very different in Scotland.”
On March 22, 2013, the Law Society of Scotland had voted 58-27 to remove the current exception to the conflict of interest rules that permits a single solicitor to carry out work both for a client wishing to buy a property and their mortgage lender. To become effective, the revised practice rules will have to be approved by the members of the Law Society of Scotland at a special general meeting to be held in September 2013 and approved by the lord president. See http://www.lawscot.org.uk/news/press-releases/2013/march-/news22313agmseprep; http://www.lawgazette.co.uk/news/separate-representation-vote-condemned. These two UK decisions, which come out with different results, can provide the basis for a useful discussion in Chapter 5 related to Conflicts of Interest.
You might also find it useful to show the students the buyer-seller conflict decision tree and buyer-lender conflict decision tree. See http://www.lawsociety.org.uk/advice/documents/conflicts-of-interest—buyer-and-seller/ and http://www.lawsociety.org.uk/advice/documents/conflicts-of-interest—lender-and-borrower/ .
The AALS Section on Professional Responsibility invites papers for its 2014 Annual Meeting program, “The Lost Lawyer and the Lawyer-Statesman Ideal: A Generation Later – The Shifting Sands of the Profession’s Identity.”
More information is available here: AALS SECTION ON PROFESSIONAL RESPONSIBILITY.
The Stein Center for Law and Ethics and the Corporate Law Center co-sponsored a three-part series called The Business and Ethics of Managing a 21st Century Law Firm. The concluding panel took place on Monday, March 18th and it was titled “The Impact of Technology on the Future of Law Firms.”
The final panel focused on the many kinds of technology influencing the way today’s law firm does business and the ethical questions this technology raises. Panelists shared their views on virtual law firm business models, as well as on tools like e-discovery, data mining, quantitative methods for lawyers and the need for law firms to adopt technological tools in their day-to-day business models.
Panelists included: Dr. Silvia Hodges, Adjunct Professor at Fordham Law School and Director of Research Services at TyMetrix Legal Analytics; Daniel Martin Katz, Assistant Professor of Law & Co-Director of ReInvent Law: A Law Laboratory Devoted to Innovation, Technology and Entrepreneurship at Michigan State University College of Law; Larry W. Bridgesmith, Chief Relationship Officer, ERM Legal Solutions LLC; and Suzie Scanlon, Professional, Berger Legal LLC. Suzie Scanlon is a Fordham Law graduate from 1995. The event was moderated by Ron Lazebnik, teacher of the Samuelson-Glushko Intellectual Property and Information Law Clinic at Fordham Law School.
Please see the links below for more information
On the subject of judicial ethics: A group of legal ethics professors and five law school ethics centers (including Fordham’s Stein Center) filed an amicus brief in a pending U.S. Supreme Court case, United States v. Davila. In that case, a federal magistrate judge encouraged a criminal defendant to plead guilty and cooperate with the government, thereby violating Fed. R. Crim. P. 11, principles of judicial ethics and standards set in past judicial decisions. The federal court of appeals overturned the defendant’s guilty plea even though the defendant never objected to the magistrate judge’s exhortation. The ethicists’ brief argues that, to promote judicial integrity as well as the defendant’s fair process rights, the court of appeals acted within its supervisory authority in vacating the guilty plea without an inquiry into whether the particular defendant’s decision to plead guilty was influenced by the magistrate judge’s coercive conduct.
The State Bar of California has recommended canceling the law license of a recent UC Hastings law graduate. However the bar’s recommendation does not disbar the recent law graduate. The former MoFo summer associate lied about having a disability and received time and half in taking the California bar. The bar found that the attorney had committed acts of moral turpitude and dishonestly or corruption in violation of Business and Professional Code section 6106.
You can read the California Bar’s full decision here.
The winner of the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is Rebecca Aviel, for “The Boundary Claim’s Caveat: Lawyers and Confidentiality Exceptionalism.” The Prize will be presented at the Section Lunch of the AALS Section on Professional Responsibility, which will take place on Saturday, January 5, at 12:30 pm, at Palace Cafe on Canal Street.
Casebook contributor Laurel Terry recently returned from London where she spoke at the closing session of the first-ever International Conference of Legal Regulators http://www.international-conference-of-legal-regulators.org/ . The conference brought together lawyer regulators from around the worth to exchanges information and views on the challenges they face and their approaches to regulation. The conference concluded with a commitment by the regulators to form a network to continue these types of exchanges. Regulators in other fields – such as securities and antitrust – participate in these types of international networks.
We are planning to add a new feature to the next edition of the casebook that will compare U.S. rules and approaches to those internationally. The will identify these comparisons as “international boxes” and we will have at least two for each chapter. Prof. Laurel Terry of Penn State University, who is joining the casebook as a co-author, has written these boxes. Please feel free to use them in your classes and to offer Prof. Terry any comments or suggestions you have that will assist in the writing of the next edition.
By Bruce Green
Are prosecutors adequately complying with their discovery obligations under the constitution and other laws – including state ethics rules based on ABA Model Rule 3.8(d)? Do prosecutors’ offices take sufficient measures to promote compliance? These are among the hottest subjects of discussion in criminal justice. The discussion has been fueled in recent years by the Duke lacrosse and Ted Stevens prosecutions, among others, in which prosecutors have been found to have acted improperly. Connick v. Thompson and other recent Supreme Court cases also illustrate the problem, which was the subject of a two-day Cardozo Law School conference not long ago and will be addressed at an upcoming Mercer Law School symposium. Illustrating that discussions can be not just hot but also heated, the NYS Bar Association and the state prosecutors’ association recently got into a contretemps over a column written by the criminal defense lawyer who chairs the bar association’s criminal justice section. The prosecutors took offense at a suggestion that prosecutors’ offices train their lawyers to violate their discovery obligations. The two associations have now reportedly reached what, one might hope, is a resolution of the disagreement. Ideally, this will allow lawyers on both sides of the aisle to go back to work, live in peace, and perhaps even collaborate productively in the bar association and other fora to improve the criminal justice process for the public benefit.
You can read more here.
By Bruce Green
A front-page NY Times article described partnerships between district attorneys and debt collection agencies. Evidently, the agencies use DA letterhead to threaten to prosecute debtors unless they both make good on their bounced checks and pay an additional amount to fund an educational program on financial responsibility that they will then have to attend. The prosecutors’ offices take a cut.
This scenario provides an opportunity to explore prosecutors’ special role and some of the limitations and obligations that come with it. In particular, the scenario raises at least five questions relating to prosecutors’ role, responsibilities and exercise of discretion:
1. Evidently, no prosecutor is determining that there is a sound basis for threatening debtors with criminal prosecution. A bounced check may not be enough in itself to establish a basis for a criminal prosecution if, for example, the checking account was overdrawn unknowingly. May prosecutors threaten to prosecute individuals for writing bad checks without first determining that there is a basis – e.g., probable cause – to support a prosecution? ABA Model Rule 3.8(a) requires probable cause before filing a charge. Should the same be required before threatening to file one?
2. If some review of the evidence and exercise of judgment are necessary before making these threats, must they be made by a disinterested prosecutor, rather than by a collection agency acting with prosecutors’ authority and paying for the use of prosecutors’ letterhead? Prosecutors have “the responsibility of a minister of justice,” says the Comment to ABA Model Rule 3.8. Can they delegate that authority to a for-profit company acting on behalf of creditors who may or may not have legitimate civil claims?
3. Do the prosecutors really intend to prosecute those who receive letters and do not make the demanded payments? If the threats are empty, are the letters impermissibly misleading under ABA Model Rules 4.1(a) or 8.4(c)?
4. If the prosecutors do plan to carry out the threats, are they doing so for an improper purpose? Prosecutors have vast discretion to decide whether to prosecute, or threaten to prosecute, bad check cases when there is evidence to support a charge. But some bases for making this decision may be illegitimate. One can imagine deciding to bring charges based on the amount of the check or the number of bounced checks. But is it legitimate to single out debtors for threatened prosecution because a particular collection agency is paying the prosecutor’s office to do so? Is this an abuse of power that is “prejudicial to the administration of justice” in violation of ABA Model Rule 8.4(d)?
5. Prosecutors may receive allegations of wrongdoing committed by the collection agencies with whom they are partnering – e.g., allegations that they defrauded debtors or committed frauds on the court. If so, will the prosecutors have a conflict of interest under ABA Model Rule 1.7(a)(2) that interferes with their ability disinterestedly to investigate and address the allegations? Do prosecutors have a duty to avoid partnering with collection agencies in order to avoid these possible conflicts?