Welcome!

Welcome to our community of professional responsibility teachers! This web site provides teaching resources, ranging from syllabi and powerpoints to real time updates and videos. The web site accompanies our casebook Professional Responsibility:  A Contemporary Approach (4th ed. 2020). The Casebook uses the problem method and offers learning outcomes, multiple choice assessment questions, role plays and simulations, and an interactive online version that includes short audio lectures. Please feel free to share your ideas and resources with our community of adopters.

You may review the Table of Contents here.

We look forward to getting to know you and working with you and our fellow adopters.

Renee Knake Jefferson, Russell G. Pearce, Bruce A. Green, Peter A. Joy, Sung Hui Kim, M. Ellen Murphy,  Laurel S. Terry, & Lonnie T. Brown, Jr.

 California State Bar declares RPC 1.1 duty of tech competence, expands RPC 5.4 non-profit fee sharing rules

California State Bar declares RPC 1.1 duty of tech competence, expands RPC 5.4 non-profit fee sharing rules      Rule 1.1 addresses a lawyer duty of technical competence, and 5.4 declares that attorneys fees from a settlement – not simply court-awarded fees – may be shared with a non-profit….

Source: OTHERWISE: California State Bar declares RPC 1.1 duty of tech competence, expands RPC 5.4 non-profit fee sharing rules

 NJ ACPE Opinion 739: RPC 4.2 – Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who ‘Reply All

Contrary to several other states, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics holds that a lawyer who “cc’s” a client impliedly consents to his/her client receiving any replies directly.  – GWC

Source: OTHERWISE: NJ ACPE Opinion 739: RPC 4.2 – Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who ‘Reply All

 Priscilla Read Chenoweth – lawyer, editor, crusader, dies at 90 – NY Times

She spent seven years and much of her retirement savings to prove that a teenager had been wrongly convicted of murder. 

Source: OTHERWISE: Priscilla Read Chenoweth – lawyer, editor, crusader, dies at 90 – NY Times

Priscilla Read Chenoweth was the most widely read lawyer in New Jersey for many years.  Her weekly precis of new decisions made the New Jersey Law Journal essential reading.  But she was also an impassioned advocate.  A passion she passed on to her daughter Lesley who, with her husband Michael Risinger leads Seton Hall’s Last Resort exoneration project. – gwc

 Meet The Voting Rights Heavy-Hitters That Biden Has Picked To Lead DOJ | Talking Points Memo

Meet The Voting Rights Heavy-Hitters That Biden Has Picked To Lead DOJ | Talking Points Memo By Tierney Sneed – February 25, 2021 President …

Source: OTHERWISE: Meet The Voting Rights Heavy-Hitters That Biden Has Picked To Lead DOJ | Talking Points Memo

By Tierney Sneed – February 25, 2021

President Biden has chosen for top positions at the Justice Department three advocates who have spent their lifetimes in the civil rights arena and the last four years in particular combatting the Trump-era’s most egregious assaults on democracy.

 

When then-President Trump put forward judicial nominees who had shown hostility to voting rights, Vanita Gupta organized the civil rights community pushback that helped sink the confirmations of at least two of them.

When the administration stood up a sketchy “election integrity” commission to validate Trump’s false voter fraud claims, Kristen Clarke spearheaded one of the early legal challenges that contributed to the panel’s eventual demise.

And when Trump hijacked the U.S. foreign policy apparatus to smear his 2020 presidential opponent, Pamela Karlan testified in House impeachment proceedings about the implications that gambit had for democracy.

Now all three have been selected for key DOJ positions from which they can revitalize the department’s role in the voting rights space — at a time when the threats to democratic participation are historically daunting.

 Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement – Georgetown – forthcoming

The rhetoric of judicial impartiality, of non-partisanship, of separation of powers dominates the language of judges – and of lawyers and acolytes in the media….

Source: OTHERWISE: Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement – Georgetown – forthcoming

Chafetz’s forthcoming Strategies of Judicial Aggrandizement is a rare treatment of the courts the way others are treated.  We are accustomed to the charge that bureaucracies try to increase their power, that legislatures overreach, and that Presidents tend toward the imperial (thank you Arthur Schlesinger, Jr.).  But rarely does “judicial aggrandizement” get any attention.

Sherrilyn A. Ifill: Lawyers Enabled Trump’s Worst Abuses – The New York Times

We have arrived at a time of reflection.  When Barack Obama was elected we felt, just perhaps, we have moved decisively toward that promised…

Source: OTHERWISE: Sherrilyn A. Ifill: Lawyers Enabled Trump’s Worst Abuses – The New York Times

NAACP LDF President Sherrilyn A. Ifill looks to South Africa’s  Truth & Reconciliation Commission as a model for use to follow – to look at our profession’s failures.  – GWC

Arizona Supreme Court opens door to non-lawyer ownership of law firms

Source: OTHERWISE: Arizona Supreme Court opens door to non-lawyer ownership of law firms 

The Arizona Supreme Court – effective January 1 – has authorized non-lawyer ownership of law firms and other “Alternative Business Structures” including licensed paraprofessionals who can complete forms and represent clients.

The ABA Journal reports that Arizona Vice Chief Justice played a key role with David Byers of the state Administrative Office of the Courts in examining how legal services are delivered.  The task force of the Arizona Supreme Court reported in October 2019:  It recommended that the Court

Eliminate Arizona’s ERs 5.4 and 5.7 and amend ERs 1.0 through 5.3 to remove the explicit barrier to lawyers and nonlawyers co-owning businesses that engage in the practice of law while preserving the dual goals of ensuring the professional independence of lawyers and protecting the public.

Editorial: Limit mandatory arbitration in retainer agreements – NJ Law Journal

The New Jersey Supreme Court recently ruled that a lawyer may provide for mandatory arbitration  even of malpractice claims – in its retainer agreement.  But it must explain to its client the advantages and disadvantages of the choice.  The court referred the issue to is Advisory Committee on Professional Ethics – on which I serve, as I do on the amicus committee of the State Bar, and the Editorial Board of the New Jersey Law Journal half of whose members recused because they are involved one way or another in the issue which is a truly hot button issue in the New Jersey Bar.

The Law Journal Editorial Board calls for independent representation of clients in such matters.  The ACPE has solicited comments from the Bar.  It may be a bumpy ride. Published Opinions of the ACPE are binding – but subject to discretionary review by the Court itself.

  • GWC

Source: Torts Today: Editorial: Limit mandatory arbitration in retainer agreements – NJ Law Journal

 

“We believe that requiring a prospective client, not independently represented, to give up the right to choose the forum of dispute resolution at the outset of a relationship is detrimental to the client’s interest and should be banned. If, and when, a dispute arises between lawyer and client, the respective parties may agree that it is in their individual interest that the dispute be arbitrated rather than fought in court. Presumably, at that time, the client will have secured new counsel who can, independently, advise the client of the wisdom of resolving the dispute in one forum or another.

We cannot conceive of a lawyer independently consulted by a client about the wisdom of signing a mandatory arbitration clause advising that client to forfeit the choice of forum for dispute resolution at the outset of a representation. Some courts require a client to get independent advice before agreeing to mandatory arbitration in a retainer agreement. Others ban it outright. The ABA allows such a provision provided “the advantages and disadvantages are discussed.”

Lawyers – en masse – call for Giuliani to be disciplined, suspended

New York Supreme Court Appellate Division First Department It began with the New York State Bar Association announcing an inquiry into wh…

Source: OTHERWISE: Lawyers – en masse – call for Giuliani to be disciplined, suspended

 

It began with the New York State Bar Association announcing an inquiry into whether it should expel the former United States Attorney, Mayor of New York, and personal counsel to a President Rudy Giuliani.  The Trump confidant had fallen into disrepute as he played a role in the sixty failed lawsuits brought by the Trump campaign to somehow undermine the results of an election which the sitting lost by over seven million votes.  The movement gained momentum and gravity after the former prosecutor at the now notorious January 6 White House rally warmed up the soon to be riotous mob by declaring ““Let’s have trial by combat.””

Donald Trump’s narrow margins in a handful of states presented a theoretical path to snatch an electoral college victory from a popular vote defeat. Giuliani was coordinator of unsuccessful electoral challenges in a dozen states, according to Democracy Docket which itself coordinated Democratic Party defenses.  Things quickly went badly for Giuliani;s efforts as even conservative judges spurned the efforts to discount votes.  In a key state – Pennsylvania District Judge Matthew Brann, a former GOP official, repudiated the action saying

…this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.

Brann was quickly affirmed by a conservative panel of the Third Circuit which wrote  Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.” 

Criticism mounted but it was the January 6 rally which pushed things off a cliff.  Two carefully crafted and detailed letters to New York disciplinary authorities in the First Department of the Appellate Division of New York Supreme Court have demanded action against Giuliani.  The first was filed by former Massachusetts Attorney General and Common Cause President Scott Harshberger on behalf of Lawyers Defending American Democracy, Inc.  The LDAD complaint, co-signed by dozens of prominent lawyers, former prosecutors and judges has now garnered over 4,000 signatures.  Citing factually and legally groundless litigation to invalidate millions of votes Harshberger et al. call for Giuliani to be suspended while the “Committee… investigates”.

Another complaint, filed the next day by Ronald C. Minkoff, of New York, and co-signed by dozens of prominent lawyers and academics, is brought on behalf of Michael Miller, a past President of both the New York State Bar Association and the New York County Lawyers Association.  The carefully drafted and comprehensive complaint centers on the Pennsylvania action and the January 6 “attempted insurrection”. It calls for unspecified discipline against Giuliani, a New York attorney for KEEP READING:

OTHERWISE: Lawyers – en masse – call for Giuliani to be disciplined, suspended

 

OTHERWISE: Amicus Cases – NJ State Bar Association – 2015 – 2020

 

Source: OTHERWISE: Amicus Cases – NJ State Bar Association – 2015 – 2020

The New Jersey State Bar Association – the largest private organization of lawyers in the State – frequently appears (often by invitation) before the New Jersey Supreme Court on issues of particular concern to the Court, the Bar, and the public.  I am proud to be a member of the amicus committee and to have briefed and argued for the NJSBA in two cases (Kernahan and Chaparro Nieves) in the past couple years before the State Supreme Court.  
This body of work illustrates a bar association which takes to heart its role as both advocate for the interests of lawyers, and for defending the principle of access to justice. – GWC

California: Duty to Prospective client – Proposed Formal Opinion Interim No. 17-0003

The California State Bar has solicited comment on its proposed Formal Opinion No. 17-0003 regarding duties of confidentiality to and avoidance of conflicts of interest to prospective clients.  The deadline for comment is March 22, 2021. – gwc

Proposed Formal Opinion Interim No. 17-0003 [Duty to Prospective Client]

ISSUES: 
1. When a prospective client has provided confidential information to an interviewing lawyer, may the interviewing lawyer disclose that information or use it to the prospective client’s disadvantage? 
2. When the interviewing lawyer has received material confidential information from a prospective client, under what conditions is ethical screening available so that other lawyers in the lawyer’s law firm may represent other clients who are adverse to the prospective client in the same or substantially related matters? 
3. To what extent can a prospective client give advanced informed written consent to permit other lawyers in an interviewing lawyer’s law firm to be adverse to a former prospective client in the same or substantially related matter in circumstances where the interviewing lawyer is screened from the representation but the precondition for screening in rule 1.18(d) has not been met because the interviewing lawyer did not take the “reasonable measures” required by that rule?

Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68 – The New York Times

Any discussion of Deborah Rhode’s work and impact inevitably is a flood of superlatives. We are fortunate that Clay Risen of the New York Times took the time to tell the story of a woman who was a powerful debater, teacher, writer, and thinker.  A high school classmate of Merrick Garland, the Biden-Harris administration will unfortunately be unable to turn to her for the passion and powerful intellect and integrity she brought to her work in legal ethics.   The field was little heeded until the Watergate debacle put prominent lawyers like White House counsel John Dean in the dock, and Attorney General John Mitchell in jail.

Deborah Rhode, perhaps more than any other legal scholar changed that. – GWC

Source: OTHERWISE: Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68 – The New York Times

By Clay Risen

Deborah L. Rhode, a law professor who transformed the field of legal ethics from little more than a crib sheet for passing the bar exam into an empirically rich, morally rigorous investigation into how lawyers should serve the public, died on Jan. 8 at her home in Stanford, Calif. She was 68.
Her husband, Ralph Cavanagh, confirmed her death but said that the cause had not yet been determined.
With 30 books and some 200 law review articles to her name, Professor Rhode, who spent over four decades teaching at Stanford, was by far the most-cited scholar in legal ethics, with a work ethic that astounded even her hard-charging colleagues.
“She was done with all her chapters before I started mine,” said David J. Luban, a law professor at Georgetown and one of her co-authors on “Legal Ethics,” a casebook now in its eighth edition.

Lawyers’ response to online comments sharply limited: ABA Formal Opinion 496

Source: OTHERWISE: Lawyers’ response to online comments sharply limited: ABA Formal Opinion 496

Lawyers’ ability to respond to online criticism is sharply limited by both confidentiality and prudential concerns according to the ABA’s newly issued Formal Opinion.  The opinion largely tracks the opinions of bar associations, and official ethics committees.
One of the closer questions is what constitutes a controversy between attorney and client, relieves the lawyer of certain strictures of confidentiality under RPC 1.6.  The ABA Committee opines:
even if an online posting rose to the level of a controversy between lawyer and client, a public response is not reasonably necessary or contemplated by Rule 1.6(b) in order for the lawyer to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Comment [16] to Rule 1.6 supports this reading explaining, “Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes stated.”
It is, however, a noteworthy suggestion that

A lawyer may request that the host of the website or search engine remove the post. This may be particularly effective if the post was made by someone other than a client. If the post was made by someone pretending to be a client, but who is not, the lawyer may inform the host of the website or search engine of that fact. In making a request to remove the post, unless the client consents to disclosure, the lawyer may not disclose any information that relates to a client’s representation or that could reasonably lead to the discovery of confidential information by another, but may state that the post is not accurate or that the lawyer has not represented the poster if that is the case.

= GWC

 New York State Bar Association Launches Historic Inquiry Into Removing Trump Attorney Rudy Giuliani From Its Membership – New York State Bar Association

Source: OTHERWISE: New York State Bar Association Launches Historic Inquiry Into Removing Trump Attorney Rudy Giuliani From Its Membership – New York State Bar Association

By Susan DeSantis

24/09/2019 Rudolph Giuliani, Ex-Prefeito de Nova York

The New York State Bar Association (NYSBA) strongly condemned the violent uprising that occurred at the U.S. Capitol on Jan. 6, orchestrated by individuals bent on subverting the will of the voters by disrupting the certification of the 2020 presidential election results.

Thankfully, Congress overcame this assault and fulfilled its constitutional responsibility in certifying the Biden-Harris victory. However, we must address the root cause of this abhorrent incident, the blame for which lies first and foremost with President Donald Trump.

But the president did not act alone. Hours before the angry mob stormed the Capitol walls, Trump’s personal attorney, Rudolph Giuliani, addressed a crowd of thousands at the White House, reiterating baseless claims of widespread election fraud in the presidential election and the Georgia U.S. Senate runoffs.

“If we’re wrong, we will be made fools of, but if we’re right a lot of them will go to jail,” Mr. Giuliani said. “Let’s have trial by combat.”

 Investigate and Prosecute | New Jersey Law Journal

 The New Jersey Law Journal Editorial Board today calls for impeachment of Donald Trump and for incoming A.G. Merrick Garland to “relentlessly investigate and prosecute” those responsible for the near catastrophe at the Capitol on January 6.

Disclosure: I am a member of the Board

Source: OTHERWISE: Investigate and Prosecute | New Jersey Law Journal

Association of American Law Schools Annual Meeting Professional Responsibility Section Final Event Today

Our final PR Section event happens today, starting at 4:15 Eastern. These papers are both terrific—hope you will join us!

Section on Professional Responsibility: Works In Progress Workshop

This workshop pairs two scholars with two more senior scholars to comment on and discuss promising works in progress. The first article is entitled “Future-Proofing Against the Inevitability of Intrusive Lawyer Marketing” and is written by Seth Katsuya Endo, Assistant Professor, University of Florida Fredric G. Levin College of Law. It will be commented on by Rebecca Aviel, Professor and Associate Dean for Faculty Scholarship, University of Denver Sturm College of Law. The second article is entitled “The Color of Leadership in Public Interest Law” and is written by Atinuke (Tinu) Adediran, David and Pamela Donohue Assistant Professor, Boston College Law School. It will be commented on by Elizabeth Chambliss, Henry Harman Edens Professor of Law and Director of the NMRS Center on Professionalism, University of South Carolina School of Law. The panel will be moderated by Benjamin Edwards, Associate Professor of Law University of Nevada, Las Vegas, William S. Boyd School of Law.

Association of American Law Schools Annual Meeting Professional Responsibility Section Events Today

Attending AALS? Today is jam-packed with excellent sessions, including the PR Section’s Main Program:

2:45-4PM Eastern Section on Professional Responsibility Main Program: Legal and Judicial Ethics in the Post-#MeToo World

In 2016, the ABA amended Model Rule 8.4(g) clarifying that professional misconduct includes sexual harassment and discrimination, though few jurisdictions adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to address sexual misconduct, but some argue the reforms do not go far enough. Headlines regularly feature attorneys and judges involved in sexual misconduct, whether as bystanders, facilitators, or perpetrators. Panelists will discuss ethics as a means to address these issues. Jaime Santos, founder of Law Clerks for Workplace Accountability, will speak along with presenters selected from a competitive call for papers.

  • Moderator Renee Knake Jefferson Joanne and Larry Doherty Chair in Legal Ethics, Professor of Law University of Houston Law Center
  • Speaker Call for Papers Susan S. Fortney Professor of Law; Director, Program for the Advancement of Legal Ethics Texas A&M University School of Law
  • Speaker Call for Papers Jon J. Lee Professor of Practice University of Minnesota Law School
  • Speaker Call for Papers Samuel J. Levine Dir., Jewish Law Institute and Professor of Law Touro College, Jacob D. Fuchsberg Law Center
  • Speaker Jaime Santos, Partner Goodwin Procter

Other events of interest happening today include:

  • Thursday 1/7 11-12:15PM Eastern Section on Leadership, Co-Sponsored by Professional Responsibility and Pro Bono & Public Service Opportunities: Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement
  • Thursday 1/7 1:15-2:30PM Eastern Hot Topic Program: Breaking News in U.S. Legal Regulatory Reform Was 2020 the year that changed the practice of law forever? This panel of experts in legal regulatory reform will discuss recent and upcoming changes in legal services regulation, including: The relationship between regulatory reform and access to justice; the status of regulatory reform efforts around the country and the driving forces of these changes; what we can we learn from legal regulation in other countries; the status of evaluation efforts; an update on efforts to eliminate the bar exam as a barrier to entry for the legal profession; and what these changes mean for the future of legal education.
  • Thursday 1/7 4:15-5:30PM Eastern Author Meets Reader Shortlisted: Women in the Shadows Of the Supreme Court—A Conversation with Justice Goodwin Liu  Join California Supreme Court Justice Goodwin Liu along with the authors of the book Shortlisted: Women in the Shadows of the Supreme Court, Renee Knake Jefferson and Hannah Brenner Johnson, to hear the untold story of nine women considered for the Court before Sandra Day O’Connor became the first female Justice. The discussion will include lessons learned from this extraordinary history that can be applied today to address enduring gender disparity in positions of leadership and power, as well as observations about recent appointments to the Court. NYU Press is offering book purchasers a 30% discount + free shipping with code shortlisted30 here.

Association of American Law Schools Annual Meeting Professional Responsibility Section Events Today

Greetings on Day One of AALS!

For those attending, hope you’ll make time today for the PR Section’s pedagogy program, which is new addition this year. Here’s the full description:

4:15-5:30PM Eastern. Section on Professional Responsibility: Bright Ideas and Best Practices for Online Teaching in Professional Responsibility Courses. This program features a panel of prominent professional responsibility scholars who will share bright ideas and best practices for teaching the topic online.

  • Moderator Susan S. Fortney Professor of Law; Director, Program for the Advancement of Legal Ethics Texas A&M University School of Law
  • Speaker Alberto Bernabe Professor UIC John Marshall Law School
  • Speaker Susan D. Carle Professor of Law American University, Washington College of Law
  • Peter Joy Henry Hitchcock Prof.; Vice Dean for Academic Affairs; Director, Criminal Justice Clinic Washington University in St. Louis School of Law
  • Speaker Margaret C. Tarkington Professor of Law Indiana University Robert H. McKinney School of Law

Other events co-sponsored by our Section happening today include:

  • 2:45-5PM Eastern Section on Litigation, Co-Sponsored by Professional Responsibility: The Growth of Third-Party Litigation Finance: Opportunities and Challenges

And then please be sure to save time Thursday afternoon for other events, especially for our Section Main Program, as well as our final event of the week, Saturday’s Works-in-Progress Session.

  • Thursday 1/7 11-12:15PM Eastern Section on Leadership, Co-Sponsored by Professional Responsibility and Pro Bono & Public Service Opportunities: Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement
  • Thursday 1/7 1:15-2:30PM Eastern Hot Topic Program: Breaking News in U.S. Legal Regulatory Reform 
  • Thursday 1/7 2:45-4PM Eastern Section on Professional Responsibility Main Program: Legal and Judicial Ethics in the Post-#MeToo World
  • Thursday 1/7 4:15-5:30PM Eastern Author Meets Reader Shortlisted: Women in the Shadows Of the Supreme Court—A Conversation with Justice Goodwin Liu Special update: one of the women profiled in Shortlisted is Judge Joan Dempsey Klein, who passed away on December 24, 2020, at the age of 96. This session will now include a tribute to her in addition to the discussion planned.
  • Saturday 1/9 4:15-5:30PM Eastern Section on Professional Responsibility: Works-In-Progress Workshop

To join the conference, you need to have already registered at AALS.org, then create a profile for eventpower.com via the personalized link sent by email in order to access the main event website: https://event-app.eventpower.com/event_app/user/login/21AALS If you have problems, this contact is great for help: aals@support.eventpower.com

 Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger.

And what about the Foley & Lardner lawyer who was on the call with him?

Witness or defendant?

Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger. By Rick Hasen (UCLA, Election Law Blog)

Source: OTHERWISE: Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger.

Revision to ABA Model Rule 1.8(e) on Gifts

From Law360:

ABA Broadens What Gifts Attorneys May Give Clients

The world of legal ethics generally frowns upon attorneys providing financial assistance to their clients for nonlegal matters to avoid the possibility that the clients could become indebted to their lawyers and possibly end up pursuing lawsuits they might otherwise not file.

The ban on financial assistance by lawyers to their clients for living expenses is covered by the American Bar Association‘s Model Rule 1.8(e), which some legal advocates in recent years asserted was too narrow for real-world situations involving poor clients.

The ABA moved to amend the rule in August, allowing attorneys working for pro bono programs, law school clinics or nonprofit legal services or public interest organizations to provide “modest gifts” to their clients.

Lawyers may now provide financial assistance for living expenses such as food, medicine, rent and transportation, particularly if failing to do so might pressure the client to otherwise settle their matter or not even file it to begin with, according to the amendment.
Read more here.