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 (3d ed. 2017).   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.

The Authors (Bruce A. Green, Peter A. Joy, Sung Hui Kim, Renee Newman Knake, Ellen Murphy, Russell G. Pearce & Laurel S. Terry)

ABA Formal Opinion 483: Lawyers’ Obligations After an Electronic Data Breach or Cyberattack

This week, the ABA released a formal opinion clarifying (somewhat) the obligations lawyers have when a data breach occurs involving (or having a substantial likelihood of involving) material client information.

Just in time for Cybersecurity Awareness month 2018.

You can find Formal Opinion 483 here.

OTHERWISE: U.S. Courts: Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts

Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts Published on September 13, 2018 …

Source: OTHERWISE: U.S. Courts: Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts

The Judicial Conference today approved changes to the Judiciary’s Model Employment Dispute Resolution (EDR) Plan to cover interns and externs and to extend the time for initiating EDR complaints from 30 to 180 days. The Conference’s Judicial Resources Committee will consider further changes to the model plan at its next meeting. The Director of the Administrative Office of the U.S. Courts also reported on the recruitment of a Judicial Integrity Officer in the Administrative Office and the expansion of judicial, staff, and law clerk orientations and education dealing with workplace harassment.

In addition, the Chairs of the Committees on Codes of Conduct and Judicial Conduct and Disability reported to the Conference on proposed amendments to the Codes and Conduct Rules responsive to the recommendations contained in the June 2018 Report of the Federal Judiciary Workplace Conduct Working Group. The proposed amendments were published today for public comment.

The amendments include provisions that state:

  • A judge has an affirmative duty to promote civility, not only in the courtroom, but throughout the courthouse.
  • A judge should neither engage in nor tolerate workplace misconduct, including comments or statements that could reasonably be interpreted as harassment, abusive behavior, or retaliation for reporting such conduct.
  • A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that another judge’s conduct violated the Code. The action should be reasonably likely to address the misconduct, prevent harm to those affected by it, and promote public confidence in the integrity and impartiality of the Judiciary.
  • In order to file a misconduct complaint, an individual does not have to be subject to alleged misconduct.
  • Confidentiality obligations of employees should never be an obstacle to reporting judicial misconduct or disability.
  • A judge has an obligation to safeguard complainants from retaliation. Retaliation for reporting misconduct constitutes judicial misconduct.
  • A judge’s failure to call to the attention of the relevant chief judge clearly identified information reasonably likely to constitute judicial misconduct constitutes judicial misconduct.
  • An express reference to workplace harassment within the definition of misconduct.

OTHERWISE: The Real McCoy: Good Intentions Cannot Overrule Client’s Instructions | Legal Ethics in Motion

POSTED BY  ALICE KERR  ON OCT 12, 2018 IN  ATTORNEY-CLIENT RELATIONSHIP The Real McCoy: Good Intentions Cannot Overrule Client’s Instructio…

Source: OTHERWISE: The Real McCoy: Good Intentions Cannot Overrule Client’s Instructions | Legal Ethics in Motion

Update: The matter of McCoy v. Louisiana first appeared on this blog on October 17, 2017. The United States Supreme Court granted certiorari to decide whether a criminal defense attorney is constitutionally permitted to concede his or her client’s guilt over the defendant’s objections.

Robert McCoy was charged with three counts of first-degree murder and pleaded not guilty. McCoy’s parents hired Larry English to take over the case after McCoy had his assigned counsel removed.  English concluded that the evidence against McCoy was overwhelming and the best strategy for avoiding the death penalty would be to admit guilt at trial and plead mental incapacity at sentencing. McCoy insisted on his innocence and objected to any admission of guilt.  Two days before trial, McCoy petitioned the court to terminate English’s representation. English also supported this request.  However, the trial court refused McCoy’s request.

At the guilt phase of the trial, English told the jury that McCoy “committed [the] three murders.” McCoy then testified in his own defense. The jury found McCoy guilty on all three counts. During the penalty phase, English again conceded that McCoy committed the crimes, but asked for mercy given McCoy’s mental and emotional issues.  The jury returned three death verdicts. The Louisiana Supreme Court, upheld McCoy’s conviction and sentence.  The Louisiana Supreme Court concluded that English had the authority to concede guilt as a trial strategy. The Louisiana Supreme Court upheld English’s conduct by relying on the Louisiana Rules of Professional Conduct Rule 1.2(d), which states, “a lawyer shall not. . . assist a client, in conduct that the lawyer knows is criminal or fraudulent.” The LA Supreme Court opined that had English presented McCoy’s alibi defense, English could be implicated in perjury, given English’s disbelief in McCoy’s alibi.

In a 6-3 decision, the United States Supreme Court reversed the Louisiana Supreme Court’s ruling and held that McCoy’s Sixth Amendment rights were violated.  The decision discussed the allocation of authority in the lawyer-client relationship, considering two points: (1) who has the ultimate authority to decide the objectives of representation, and (2) who has the authority to decide how to carry out those objectives?  The SCOTUS decision echoes Louisiana RPC Rule 1.2 (a), which states that a lawyer “shall abide by the client’s decisions concerning the objectives of representation” and provides that “in a criminal case, a lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”

Ultimately, the defendant has the right to choose the objective of his defense. The lawyer then crafts the strategy around how to best achieve that objective. Thus, McCoy had the right to maintain his innocence, have his case presented, and let the jury decide.  English, irrespective of his good intentions, foreclosed that right by controlling every aspect of the case to the detriment of his client’s objectives.

Read the United States Supreme Court decision here.

Call for Papers: New Voices in Professional Responsibility—Works in Progress Session AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

AALS Annual Meeting, New Orleans, LA, Thursday, January 3, 3:30-4:45 pm

The Professional Responsibility Section is pleased to host a works in progress session during the 2019 Annual Program. Papers selected will be presented at the session along with commentary from a scholar in the field. Papers can be on any professional responsibility topic from professors with seven years or less of full-time teaching experience. Submitted drafts should be near completion with the expectation that they will be submitted for publication during the spring law review submission cycle.

Papers should be submitted to Melissa Mortazavi, via email at melissa.mortazavi@ou.edu, no later than September 17, 2018, with the subject line: PR Works in Progress.

ABA House of Delegates Amends Lawyer Advertising and Solicitation Rules (updated with information about MPRE testing)

From the ABA Journal:

The ABA House of Delegates on Monday voted in favor of amending Rule 7 of ABA Model Rules of Professional Conduct, which addresses lawyer advertising.

Lucian Pera, of Adams and Reese in Memphis, Tennessee, and chair of the Center for Professional Responsibility, told delegates that in the decades since the 1977 U.S. Supreme Court decision in Bates v. State Bar of Arizona allowed for lawyers to advertise their services, there’s been a “breathtaking variation in advertising rules” among states. He said the amendments were necessary to clarify and simplify these rules.

Resolution 101 amends Rules 7.1-7.5, and was informed 2015 and 2016 reports by the Association of Professional Responsibility Lawyers. The Standing Committee on Ethics and Professional Responsibility worked on the edits over the course of two years, holding at least two open hearings. A detailed article on their work is available here.

No one rose to oppose the amendment, and the majority of delegates voted in favor of the amendments.

For those of you teaching PR during 2018-2019, you may wish to advise your students regarding the appearance of revised rules on the MPRE. Here is the position of the NCBE as posted on its website:

Amendments to the ABA Model Rules of Professional Conduct or the ABA Model Code of Judicial Conduct will be reflected in the examination no earlier than one year after the approval of the amendments by the American Bar Association. Until that time, the examination may include questions that test on the rules before amendment.

OTHERWISE: Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters

Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters by Alison Frankel (Reuters) – It’s always no…

Source: OTHERWISE: Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters

 

(Reuters) – It’s always notable when a federal judge presiding over a big class action slashes a fee request by millions of dollars – but I think there’s another story lurking beneath the dollar signs in an opinion issued Tuesday by U.S. District Judge Lucy Koh of San Jose.
Three plaintiffs’ firms that obtained nearly $170 million for artists and engineers whose job prospects suffered under an alleged no-poaching agreement among animation studios asked Judge Koh to award them $31.5 million for squeezing a $150 million settlement from Disney and Dreamworks. The judge instead granted them $13.8 million. She previously awarded $4.7 million in fees for a smaller classwide settlement, bringing the total fees for plaintiffs’ lawyers from Cohen Milstein Sellers & Toll, Hagens Berman Sobol Shapiro and Susman Godfrey to about $18.5 million.
Notably, Judge Koh’s award was based not on the recovery the firms won for class members but on their hourly billings. The firms wanted the judge to grant them 21 percent of the class recovery, which, they argued, is less than the 25 percent benchmark established by the U.S. Court of Appeals for the 9th Circuit. Judge Koh, however, applied the alternative lodestar approach.