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.
by Professor Alberto Bernabe – The John Marshall Law School
As you probably know, there are differences of opinion as to whether the duty to disclose information imposed on prosecutors by ABA Model Rule 3.8 is broader than the duty imposed by the constitutional standards in Brady v. Maryland. The ABA Standing Committee on Professional Responsibility held that it does in Formal Opinion 09-454, but a few jurisdictions have held otherwise. I have written about this in the past here. (And for all my posts on prosecutors’ duty to disclose evidence go here.)
Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia have reached the same conclusion. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana and Wisconsin.
Now comes news that the New York City bar’s ethics committee has issued an opinion holding that a prosecutor’s ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland. See N.Y.C. Bar Ass’n Comm. on Prof’l Ethics, Op. 2016-3, 7/22/15….
I’m wrapping up Chapter 2 today, teaching the pieces by Luban and Mukasey/Filip on the torture memos that appear at the chapter’s conclusion. This article from Clare Keefe Coleman has been helpful in framing the discussion: Teaching the Torture Memos: “Making Decisions Under Conditions of Uncertainty,” 62 J. Legal Educ. 81 (2012). Abstract follows the jump.Read More »
Interesting post by Prof. Alberto Bernabe. FWIW if there is no identifiable living person who would be harmed by the disclosure, I think that the old file can be donated to a library. A much harder case is that of, for example, about the files of the lawyers `cold war’ spies like Alger Hiss or the Rosenbergs for whom there are living heirs – who have explored, explained, and assessed their conduct . – gwc
The ABA Journal and Law.com have reported the story of a San Diego lawyer who was sentenced to five years in prison for using his IOLTA account to facilitate money-laundering activities. In his plea agreement, attorney Medina admitted that he used his IOLTA account for the receipt, transport, and transmission of cash to international destinations and that he “knew or had reason to know that the cash transactions described [therein] were proceeds of unlawful activity, or were intended to promote unlawful activity.”
This new story can be used in Chapter 2 when teaching Rule 1.2(d), which states that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent….” Although PR profs cannot possibly teach the substantive law of all crimes, I think it is important to make sure that our students are familiar with 18 U.S.C. § 1956. Among other things, § 1956 makes it a felony “to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” This means that activity that is perfectly legal in one context (such as forming one or more corporations) may be illegal if the purpose of that otherwise legal conduct is to hide the location or source of the proceeds of crime. (The 60 Minutes/Global Witness videos and the Panama Papers leak can provide useful hypos for discussion).
The San Diego case shows students that lawyers who assist money laundering activity face criminal law sanctions, as well as disciplinary sanctions under Rule 1.2(d). I found it noteworthy that the plea agreement with Attorney Medina recited that he knew or had reason to know that the money in his IOLTA account were proceeds of unlawful activity, or were intended to promote unlawful activity.
For additional information about the role of lawyers in preventing money-laundering, see this ABA Task Force webpage and the guidance provided by the ABA and jointly by the IBA, CCBE, and ABA about how to identify money-laundering red flags. (I give my students a 2-page summary of the ABA’s red flags guidance.)
My other work about lawyers and money-laundering includes these slides about the potential impact on US lawyer regulation of FATF’s 4th Mutual Evaluation of the US; slides that focus on US efforts to educate lawyers about money-laundering; and slides and a 2 page handout that discuss how US lawyer regulation could be affected if US lawyers don’t recognize money laundering situations. My most recent article about this topic is available here.
Would a woman in Lexington, Ky., who faces fraud charges, still be in jail if her lawyer had the time to appeal a $40,000 bail bond?
Will a 50-year-old illiterate man in Cole County, Mo., charged in August with vehicular assault and facing over a decade in prison, be assigned an attorney with the resources to defend him?
Justice For Some
Part one of a three-part series about the underfunded public defenders of Louisiana.
In September 1980, as violence and civil war erupted throughout Central America, a quiet American left Harvard Law School to volunteer with Jesuit missionaries in northern Honduras.
Around him, the United States-backed military dictatorship hunted Marxists and cracked down on the Catholic clergy for preaching empowerment to peasant farmers. But some locals also looked warily on the bearded and mop-haired Midwesterner in their midst.
Just a few hours south, the Central Intelligence Agency was using Honduras as a staging ground in its covert war against Latin American communism, with right-wing forces training for operations in El Salvador and Nicaragua.
“Some of the people were wondering what’s going on, who is this guy?”Tim Kaine, then a 22-year-old volunteer and now the Democratic nominee for vice president, said in an interview. He understood why. His mentors in the priesthood had also urged him to be wary of friendly American faces.