by Elizabeth Chamblee BurchOn August 21, 2014, the Oregon Supreme Court embraced the ALI’s definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients’ informed consent before distributing a lump-sum settlement. In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients’ informed consent in writing to the formula or method he devised to divvy up the defendants’ lump-sum settlement payments, which violated Rule 1.8g. As a result, the court imposed a 90-day suspension as a sanction.For more on the problems associated with lump-sum settlements, see Howie’s article, The Trouble with All-or-Nothing Settlements.
OTHERWISE: The Dental School Model for Law Schools Future.
In the 1970’s and 1980’s dental schools experienced a decline in applicants very similar to what law schools have been experiencing. Several universities closed their dental schools – including Georgetown, Loyola Chicago, and Fairleigh Dickinson (NJ). Absent an unanticipated surge in law school applications – which could only follow a substantial uptick in jobs – law schools are in for an era of reduced enrollment and threats to solvency. Independent schools will be hit hardest, but university-based schools will also find the limits of what their hosts are willing to pay in subsidies. – gwc
Feinberg backs BP bid to overturn settlement.
Kenneth Feinberg, who worked for BP in the Gulf oil spill while claiming to be independent, is trading again on his reputation as a modern day Edward the Confessor. He has urged the Supreme Court to grant cert in BP’s attack on the deal it negotiated but now regrets in part.
His amicus brief declares “Amicus Kenneth R. Feinberg was selected by Executive Branch officials to help design, implement, and administer two successful alternatives to the conventional tort litigation system.” “Selected by Executive Branch officials’ is cagey. True for the 9/11 Fund, not for the BP spill. He was “selected” by BP and presented at a June 2010 White House press conference to spread pacifying oil on the troubled waters of public opinion as the Gulf region reeled from the still uncontained spill.
In an incidental irony BP is trying to remove Patrick Juneau as court-appointed settlement administrator. They claim not to have known Juneau had represented Louisiana in dealing with the Feinberg-administered “Gulf Coast Claims Facility”. Feinberg, of course, knew, so in my view his principals are chargeable with that knowledge. MDL judge Carl Barbier ruled that Feinberg was BP’s agent. – gwc
OTHERWISE: New Jersey Supreme Court compels disclaimer by lawyers citing judges' praise.
New Jersey attorneys like Andrew Dwyer – who want to advertise laudatory remarks by judges must now print a disclaimer. Dwyer successfully challenged the New Jersey Supreme Court’s advertising strictures which required the advertisement to include the complete text of any ruling the lawyer wants to use for promotional purposes. The Third Circuit held that the Court’s rule was too onerous. But the Circuit left some wiggle room – allowing for a disclaimer. The state high court has now spoken. Such a statement as Dwyer wants to use “must be prominently displayed in proximity to such quotation or excerpt: `This comment, made by a judge in a particular case, is not an endorsement of my legal skill or ability.'” Attorney Advertising Guideline 3, October 17, 2014
Yesterday the Supreme Court heard oral argument in North Carolina Board of Dental Examiners v. FTC, involving an antitrust challenge to the Board’s sending of cease and desist letters to non-dentists engaged in teeth whitening services. You can access the filings and more detailed coverage at Scotusblog. In my PR class today, we will discuss conflicts of interest inherent when regulators are members of the industry they regulate, and this case does a nice job of setting the issues, albeit in a somewhat different context than the way lawyers are regulated. I’m planning to use this NPR audio clip to spark discussion. For more detail on how the Court’s decision in this case might impact the legal profession, you can read this amicus brief, which I helped put together. And Scalia did ask a few questions about implications for the legal profession during oral argument (transcript here).
In recent years, the U.S. Supreme Court has continued to review the conduct of prosecutors, both under the Model Rules and the constitutional standards set by Brady. The ABA has now issued a new Formal Opinion 467, called Managerial and Supervisory Obligations of Prosecutors under Rules 5.1 and 5.3. This Opinion clarifies that prosecutors may have additional duties under 5.1 and 5.3 to supervise and manage the attorneys in their offices. The opinion notes that in some instances the duties to take appropriate remedial action under 5.1 and 5.3 may be broader than what Model Rule 3.8 currently requires. The Formal Opinion also discusses standards for establishing office-wide policies and training (including ethical obligations.) Further, the ABA recommends creating a “culture of compliance” and the impact of Rule 1.13 on governmental offices including those of the Prosecutors.
This opinion is an important supplement to Chapter 7 materials for students and teachers alike, and I will be tackling this with my class in the weeks ahead.