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.
Earlier this week, Professor Amy Salyzyn published a Jotwell review of my recent essay, The Commercialization of Legal Ethics. I’m grateful that she read it, and I hope her review encourages you to read it as well. She says: “Professor Knake’s essay is important, compelling and timely: a ‘must-read’ for those interested in the future of legal services markets both in the United States and abroad.”
Another excerpt from her review:
Previous scholarship has shown us how legal ethics in America has become “federalized” and “privatized.”1 In a recent essay in the Georgetown Journal of Legal Ethics, Renee Newman Knake outlines another modern phenomenon: the “commercialization” of legal ethics. Reading this piece, it becomes clear that the significant complexity now characterizing the regulatory environment for legal services in the United States, with state bars, courts, federal agencies and clients all now playing a role, shows no signs of waning.
According to a recent opinion from the New York City Bar’s Ethics Committee, a prosecutor’s ethical obligation to disclose evidence favorable to a defendant is broader than the constitutional minimums imposed by the Supreme Court in Brady v. Maryland.
Under the holding in Brady, prosecutors are only required to provide the defense with exculpatory evidence that is “material either to guilt or to punishment.” The materiality standard in Brady has been the subject of great criticism, prompting a divide on the issue of whether the lawyer conduct rule governing prosecutors’ disclosure contradicts federal constitutional standards.
New York City Bar’s Ethics Committee concluded that New York Rule of Professional Conduct 3.8(b)requires a prosecutor to turn over to the defense any exculpatory evidence regardless of whether the prosecutor believes it is “material.” Opinion 2016-3 reaffirms the position taken by the ABA in 2009, which advised that the ethical obligations imposed by Rule 3.8 are more demanding than the standard in Brady, because Rule 3.8 requires disclosure of any evidence or information favorable to the defense regardless of the prosecutor’s assessment of the impact on a trial’s outcome. The New York opinion also notes that under Rule 3.8 favorable information must be provided to the defense “as soon as reasonably practicable,”regardless of the timing requirements of other substantive law.
The New York City opinion can be read here.
In China there are civil consequences of defaming even deceased “heroes”: persons of high reputation. But the consequences may be more than civil liability. Beijing attorney Pu Zhiqiang since the Tian An Men 1989 protests has defended dissenters and provoked controversy on “sensitive” matters. He was charged and convicted last year of “picking quarrels” via his posts on WeiBo – a public internet platform like Google + widely used in China. But according to China Real Time Report the charges included Pu’s arrest for maligning the revered Lei Feng.
by Roy Strom
Finance has a long history of creative expansion. Financing lawsuits is proving to be no exception.
Since litigation finance hit the scene just a couple decades ago, the business has evolved from investing in single lawsuits to groups of claims to purchasing judgments at bankruptcy auctions, as Chicago-based Gerchen Keller Capital did earlier this year.
Now, some litigation finance firms are preparing for an even bigger change to their business model: Injecting cash directly into law firms in the form of an equity stake that isn’t tied to any specific case. Litigation funders Burford Capital and Woodsford Litigation Funding told Law.com they intend to invest in U.K.-based firms that are allowed to have nonlawyer owners, something that remains against professional ethics in the United States….
Jack Greenberg, a lawyer who became one of the nation’s most effective champions of the civil rights struggle, leading the NAACP Legal Defense and Educational Fund Inc. for 23 years and using the law as a weapon in its fight for racial justice before the United States Supreme Court, died on Wednesday at his home in Manhattan. He was 91.
Mr. Greenberg was the last surviving member of a legendary civil rights legal team assembled by Thurgood Marshall, the founding director-counsel of the legal defense fund and later the first African-American Supreme Court justice.
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….