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?
The New York Post headline reads: Bazooka vs. mouse: City using free power lawyer to evict vendor . The story describes how Proskauer Rose is representing the City pro bono in evicting a “longtime Greenwich newsstand operator beloved newsstand operator beloved by thousands of New Yorkers and made famous in feature films.” The Post raises the question of whether representing Goliath against David is an appropriate use of pro bono legal services What do you think?
The case involves Troutman’s representation of HSBC with regard to a loan to famed Democratic fundraiser Hassan Nemazee, who is serving a 12 year prison sentence for bank fraud. More fodder for Chapter 2: HSBC Sues Troutman
Another story for Chapter 6, Part II. Thomson Reuters reports:
Holland & Knight has agreed to pay $25 million to settle a lawsuit accusing the law firm of missing red flags that would have revealed that its client, the hedge fund manager Arthur Nadel, was operating a Ponzi scheme that duped investors out of $168 million.
Chapter 2 includes references to ABA Model Rules 1.1, 1.4, 5.3, and 5.5, all of which were modified in August 2012 pursuant to the recommendations of the ABA Commission on Ethics 20/20. None of the changes, however, require any significant changes in the analysis found in the casebook or the teacher’s manual although the quotations of Rule 5.5(d) and the title of Rule 5.3 need to be updated.
1. P. 21 of the Teacher’s Manual. The correct answer to Question 10 should be B. The analysis on that page is correct. The change in correct answer has already been made in the on-line quizzes in the Faculty Program section of TWEN and accordingly TWEN will grade the quiz correctly.
2. P. 22. The the correct answer to Question 13 is B. The analysis is correct. The change in correct answers has already been made in the on-line quizzes in the Faculty Program section of TWEN and accordingly TWEN will grade the quiz correctly.
3. PP. 28-29. Question 1 is a more complicated situation. The correct answer D accords with the Rules that the casebook provides the students. Rule 1.16 (a) mandates withdrawal and Rule 1.6 prohibits disclosure of confidences. The casebook, however, does not include Rule 1.3, Comment 5, which provides that:
To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.
This language suggests that C is the correct answer. You now have a choice of how to deal with Question 1. You can leave the question as is and introduce Rule 1.3, Comment 5 in class. Or you can assign Rule 1.3, Comment 5 before the students take the quiz and in TWEN change the correct answer to C.
By Russ Pearce
The People of Channel 38, a group of American University law grads, have created a top quality rap video which presents an overview of legal ethics.
It’s so brilliant that I would love to use it in class but I worry that some students may be offended. Instead, I am assigning as optional viewing.
What do you think? Please let us know.