Is the prohibition on judicial candidates soliciting campaign contributions directly constitutional??

In The Florida Bar v. Lanell Williams-Yulee, the Florida Supreme Court upheld the disciplinary sanctions imposed on Ms. Williams-Yulee, a candidate for Judge in Hillborough County, Florida. (138 So. 3d 379). She was sanctioned for personally soliciting campaign contributions in violation of Canon 7C (1) of the Florida Code of Judicial Conduct. Williams-Yulee argued that the Canon was unconstitutional on first amendment grounds, but the Florida Supreme Court upheld the public reprimand in her case.

Since the decision in May, 2014, both the Florida Bar and Ms. WIlliams-Yulee have petitioned the U.S. Supreme Court to review the constitutionality of Canon 7C (1). The Florida Bar notes that over 20 states have similar judicial campaign rules. (See Florida Bar News, September 15, 2014 at page 21).

Of course, some of us would argue that the entire system of electing state judges is problematic, and this is but one of the myriad issues that compromises the system. But we will need to watch to see if the U.S. Supreme Court takes the case.

Would litigation investment by third parties prevented this debacle?

Recently 750 personal injury and loss of consortium suits were dismissed in the famous (or infamous) Engle tobacco litigation because the the suits were brought on behalf of deceased persons or on behalf of parties claiming the loss of consortium with a deceased person. As this ABA Journal story reports, the Eleventh Circuit noted that a dead person cannot bring an personal injury claim in FL. (That’s why FL has survivorship actions.) In addition, like most states, FL merged loss of consortium into wrongful death where the primary victim is dead.

The twists and turns of the Engle litigation are truly incredible, and worth reviewing by anyone interested in tort law or aggregate litigation. But one thing is clear: the lawyers involved in these cases invested heavily in the litigation and, for the most part, are seasoned members of the plaintiffs bar.

The news that one of these law firms did not realize that hundreds of its clients were actually dead seems, therefore, incredible. Worse yet, the personal injury suits could have been saved had the proper party, a representative of the deceased, been the client. None of this is theoretically complex. But it seems that the law firm found it too expensive to individually review its 4000 client files in this litigation. One could say that this cost-cutting was penny-wise and pound foolish.

It is an interesting question whether anyone has standing to sue the firm for malpractice (in many states the answer would be no). My further question is whether this story helps us see the value of outside investment in litigation. An outside investor in the claims themselves (not the law firm) would have had an incentive to monitor the lawyers’ work and may have had the resources to help the lawyers do the investigations necessary to save the cases before the statute of limitations ran on them.

Anti-gay slurs merit suspension: New Jersey Supreme Court

OTHERWISE: Anti-gay slurs merit suspension: New Jersey Supreme Court.
In I/M/O Jared Stolz an insurance defense lawyer , has been suspended for three months because over a period of time he insulted his adversary with anti-gay slurs. He aggravated the situation by belated apology and by denying to a court that he had received documents which he had in fact gotten. It is a case of a lawyer who, overwhelmed by his responsibilities, reacted in a deplorable way.

Correction Teacher’s Manual Chapter 2, Question 2-13

The error below, from p. 28 of the Teacher’s Manual is that he correct answer should be (B) — this is not a unauthorized practice of law.  The explanation is correct and provides the rationale for an answer of B.  The purpose of the question is to highlight the Rule 5.5(d)(1) exception for in-house counsel, as well as the difference between Rule 5.5(d)(1) and Rule 5.5(c) which requires that the out of jurisdiction practice be temporary in order to qualify for one of its exceptions to unauthorized paractice.  Of course, if the in-house work does require “pro hac vice admission,” then the Rule 5.5(d)(1) does not apply unless the “lawyer is authorized by federal or other law or rule to provide [services] in [the] jurisdiction” per Rule 5.5(d)(2).


[Question 2-13, Casebook p. 58]

Does Joan commit UPL if she leaves F&I to become in-house counsel at Monolith, Inc., located in Sirius?

(A) Yes

(B) No

Correct Answer: (A) (B)

Even though this position is not temporary, and therefore does not fall under the exceptions in Rule 5.5(c), it does fall under the exception in Rule 5.5(d)(1) for services “provided to the lawyer’s employer or its organizational affiliates [that] are not services for which the forum requires pro hac vice admission.”