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.

New ABA rule on discrimination rejected in Pennsylvania and Illinois, Texas

Source: New ABA rule on discrimination rejected in Pennsylvania and Illinois, Texas

In August 2016 the American Bar Association adopted a revision to Rule 8.4 (g) on discrimination.

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The key language is the addition of “knows or reasonably should know”.

Professor Alberto Bernabe reports that the Pennsylvania Disciplinary Board has recommended that the Commonwealth courts has recommended the state follow Illinois which has adopted this language:

“violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer.”  This is the same language that has been in Illinois Rule 8.4(j) since 2010.

As Bernabe observes the Illinois approach, though narrower, avoids the potential first amendment problems cited by Texas Attorney General Ken Paxton, as reported in ABA Journal.

Indiana Prosecutor Reprimanded for book Deal //Legal Profession Blog

Source: Indiana Prosecutor Reprimanded for book Deal //Legal Profession Blog

 

by Michael Frisch

A public reprimand has been imposed by the Indiana Supreme Court
At all relevant times, Respondent was the elected prosecutor for Floyd County. The charges in this disciplinary action trace their genesis to the prosecution of David Camm, a former police officer charged with murdering his wife and two minor children. Camm twice was convicted, but in each instance his convictions were reversed on appeal. Camm v. State, 812 N.E.2d 1127 (Ind. Ct. App. 2004), trans. denied; Camm v. State, 908 N.E.2d 215 (Ind. 2009) (“Camm II”). Camm ultimately was acquitted following a third trial in 2013. Respondent prosecuted the second trial, and he initially continued to represent the State during proceedings in advance of the third trial until his removal from the case due to the conflict of interest described below.
Days after the jury in the second trial returned a guilty verdict, Respondent – with the intent to write and publish a book about the Camm case – entered into an agreement with “Literary Agent.” Thereafter, Respondent continued to represent the State in post-trial proceedings in the trial court and assisted the Attorney General during appellate proceedings in Camm II. In early June 2009, while Camm II was pending before this Court, Respondent entered a publication agreement with “Publisher.” After we issued our decision reversing Camm’s convictions and remanding for a third trial, Respondent wrote to Literary Agent, expressing his belief that “this is now a bigger story” and asking Literary Agent to seek a “pushed back time frame” for publication and “to push for something more out of the contract.” However, Publisher instead elected to terminate the book contract.

Cuomo vetoes indigent legal services bill – Capitol Confidential

Source: Cuomo vetoes indigent legal services bill – Capitol Confidential

 

by Matthew Hamilton // Times Union

Gov. Andrew Cuomo vetoed legislation late Saturday that would have shifted the cost of expensive legal services for the poor from counties to the state in the coming years.
Cuomo wrote in his veto message the legislation ultimately would require that the state spend more than $800 million per year to fully reimburse counties for all expenses associated with non-criminal legal defense work, including legal services in family and surrogate court.
“This bill would do little more than transfer to the taxpayers of this state an entirely new obligation to pay for any and all existing expenses related to general defense legal work, far beyond legal representation of indigent criminal defendants,” Cuomo wrote.
Currently, the state pays roughly 10 percent of the 2010 spending levels for indigent legal services for each county currently.
The legislation called for the state to assume control of indigent legal service costs by 2023, with the state assuming 25 percent of costs starting April 1, which is the beginning of the next fiscal year.
The governor proposed modifications to the bill that he contended would have led to state funding for costs associated with extending reforms statewide, with fiscal oversight through the state Division of Budget.

ABA Ethics Opinion provides guidance regarding client confidentiality when lawyer withdraws from representation for failure to pay fees | Lawyer Ethics Alert Blogs

Source: ABA Ethics Opinion provides guidance regarding client confidentiality when lawyer withdraws from representation for failure to pay fees | Lawyer Ethics Alert Blogs

 

AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY Formal Opinion 476 December 19, 2016 Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation In moving to withdraw as counsel in a civil proceeding based on a client’s failure to pay fees, a lawyer must consider the duty of confidentiality under Rule 1.6 and seek to reconcile that duty with the court’s need for sufficient information upon which to rule on the motion. Similarly, in entertaining such a motion, a judge should consider the right of the movant’s client to confidentiality. This requires cooperation between lawyers and judges. If required by the court to support the motion with facts relating to the representation, a lawyer may, pursuant to Rule 1.6(b)(5), disclose only such confidential information as is reasonably necessary for the court to make an informed decision on the motion.

Connecticut Court Explains Misapropriation Dsicipline Standards //Legal Profession Blog

Source: Connecticut Court Explains Misapropriation Dsicipline Standards //Legal Profession Blog

by Michael Frisch

The Connecticut Supreme Court has issued an opinion of significance that affirmed a reprimand for a Rule 1.15 violation and rejected a harsh presumptive sanction for intentional misappropriation

This disciplinary action originates from a twelve year old fee dispute that resulted in several actions and various appeals…

Dylann Roof: Should a defendant be permitted to represent himself in a death penalty case?

Unfortunately, my slides for the section of Chapter 2 relating to the representation of difficult and mentally ill clients continues to grow each year with the tragic recurring incidents in our national news.

This year’s update is the trial of Dylann Roof, charged with the mass shooting in a Charleston Church in June, 2015.

Dylann Roof’s self-representation, both in the guilt and sentencing phases of his case, raises fascinating ethical and constitutional questions. The case has been well-covered in the New York Times in recent weeks.

See this interesting article by UM Law Professor Scott Sundby in the Huffington Post (January 4, 2017), relating to the constitutional questions raised by his self-representation, particularly in the death penalty phase of the case.

http://www.huffingtonpost.com/entry/why-dylann-roof-representing-himself-is-a-constitutional_us_586d4390e4b014e7c72ee58b