Welcome to the Contemporary Approach to Professional Responsibility Blog

IMG_5677

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.

What do female Olympians and Supreme Court justices have in common? Apparently the media can’t stop focusing on their husbands (or lack of them)

The headlines and tweets in recent days about the media’s gendered coverage of female Olympians are strikingly similar to findings from a media study I conducted with Professor Hannah Brenner on the gendered coverage of female Supreme Court nominees.  (Remember the headlines when Obama nominated Justices Kagan and Sotomayor?  “Then Comes the Marriage Question” was one of many in this vein…)

Vox offers a critique of the Olympics coverage here:  Women are crushing it at the Rio Olympics, but the media keeps focusing on their husbands. For a summary of our media study on Supreme Court nominees, click through the slides below and read our article.

 

Cross-posted at the Legal Ethics Forum blog

ABA revises Model Rule 8.4 to include a provision addressing harassment and discrimination

From the ABA press release:

ABA strengthens provision making harassment, discrimination “professional misconduct”

The American Bar Association adopted Monday a revised resolution to strengthen language in Rule 8.4 that would classify harassment or discrimination in the practice of law professional misconduct subject to disciplinary action.

While the proposal drew widespread interest in the legal profession and division among ABA entities during the past few months, recent changes, including incorporating a knowledge requirement in the specific language of the model rule, served to bring near unanimous agreement in the final vote. More than 70 ABA members signed up to speak on behalf of the revised proposal, while none spoke against it. The House approved the change by voice vote with only a few members voting “no.”

Read more here.

OK to advise medical marijuana businesses – NJ Supreme Court

Source: OK to advise medical marijuana businesses – NJ Supreme Court

Lawyers who are consulted by clients operating medical marijuana businesses law permitted by state law face a dilemma.  Federal law remains in place, criminalizing possession and sale of marijuana.  Rule of Professional Conduct 1.2 (d) forbids counseling clients in unlawful conduct.  Although the U.S. Department of Justice announced that it would not enforce federal criminal laws when the conduct complied with state law there was still no safe harbor: a stroke of the Attorney General’s pen could change the policy.

Lawyers therefore sought advice from their state bar associations- the opinions of which do not bind courts or disciplinary authorities.  A 2011 Arizona bar association opinion said that a lawyer for such an enterprise must advise the client of federal law and “appropriately limit the scope of representation”.   A New York State Bar Association 2014 opinion was similar – explaining that declared that the federal policy of forbearance required that state regulatory policies be rigorously followed – a matter in which lawyers were an important source of compliance advice.  In many other states (Colorado, Maine, Washington, Illinois, and Alaska) similar opinionswere voiced.

When the New Jersey Supreme Court’s Advisory Committee on Professional Ethics’ lawyers and lay members faced the issue the circumstances were different: its rulings are binding, though subject to discretionary review by the Supreme Court.  The ACPE viewed the plain language of RPC 1.2 (d) and felt bound by it.  The Committee therefore referred the matter to the court itself.  After a public comment period the Court on August 1 amended the Rule itself thus granting greater protection than any Bar Association opinion can provide.  The revised Rule follows:

RPC 1.2 Scope of Representation and Allocation of Authority Between Attorney and Client
(d) A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law.
A lawyer may counsel a client regarding New Jersey’s medical marijuana laws and assist the client to engage in conduct that the Iawver reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy. 

I am a member of the New Jersey Supreme Court’s Advisory Committe on Professional Ethics. – gwc

ABA Futures Commission Final Report released this past weekend

From the ABA press release on August 6, 2016:

ABA futures panel recommends sweeping changes in delivery of legal services

The American public faces significant, unmet legal needs that require considerably more innovation and other efforts to bolster access to affordable legal services, the ABA Commission on the Future of Legal Services said in a report issued today.

The commission, releasing findings from a two-year study, offered 10 recommendations to build on past national efforts and to ensure that everyone has meaningful assistance for essential legal means. The recommendations call for sweeping changes to both the civil and criminal systems of justice.

One recommendation, urging state courts to adopt model regulatory objectives for the delivery of legal services, was approved as ABA policy by the House of Delegates in February. Other recommendations have been debated but not embraced by the Association, such as alternative business structures (ABS) for U.S. law firms. As part of a broader recommendation, the commission said future “exploration” of ABS would be “useful.”

The commission’s 10 recommendations, all accompanied by sub-recommendations and supporting materials, are:

  • The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.
  • Courts should consider regulatory innovations in the area of legal services delivery.
  • All members of the legal profession should keep abreast of relevant technologies.
  • Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations and others who develop and administer such checkups.
  • Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality and due process.
  • The ABA should establish a Center for Innovation.
  • The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.
  • The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.
  • The criminal justice system should be reformed.
  • Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services.

The Commission’s report can be found here.

(Discliamer: I served as one of the Commission’s reporters.)