A Snow Day Assignment

Yesterday was a snow day in Winston Salem and @ Wake Forest; in addition to my students instructional video assignments for our flipped class, I asked them to “build a snow person and explain the Rule 1.6 exceptions to him/her.”  The pictures started rolling in mid-day, and I thought you might enjoy.  These students’ sense of humor will take them far in practice.


Did the CIA Get a Bum Rap on Torture? // David Cole – NY Times

David Cole has read the Senate Torture Report and finds it is an unsatisfactory political compromise which focuses on effectiveness rather than the illegality of torture – thus letting the political decision makers and the designers of spurious legal defenses off the hook. – gwc

Did the Torture Report Give the CIA a Bum Rap?

by David Cole

via OTHERWISE: Did the CIA Get a Bum Rap on Torture? // David Cole – NY Times.

Foley partner files response to SCOTUS regarding unorthodox amicus brief //Legal Ethics Forum

by John Steele//Legal Ethics forum
Howard Shipley, of Foley & Lardner, responded to the order from SCOTUS that he explain the unorthodox amicus brief that he had filed on behalf of an apparently demanding and idiosyncratic client in a patent case. The amicus brief was jargon-filled, odd in its rhetorical style, and full of super-condensed references. It also suggested that the client was a significant author of the piece — which SCOTUS guidelines suggest should not be included in briefs.

Shipley’s response, available below, politely affirms the right of Shipley to file such an amicus brief and suggests that a technical error (i.e., acknowledging the client’s participation in the drafting) should not be grounds for sanctions. (h/t: How Appealing)

What I find particularly interesting is the way that Shipley’s response, authored by Paul Clement, discusses the balance between the lawyer’s duties to the client and to the court.

via OTHERWISE: Foley partner files response to SCOTUS regarding unorthodox amicus brief //Legal Ethics Forum.

Judge’s DOJ Protest Shows Power of Judicial Independence | New Jersey Law Journal

OTHERWISE: Judge’s DOJ Protest Shows Power of Judicial Independence | New Jersey Law Journal.
Judge Rakoff has a reputation for speaking his mind in written opinions, published articles and speeches on issues that concern people who are without political, legal or economic power. While some may view him an outlier, he is a frequent reminder of the positive force of an independent federal judiciary.

Catherine Lanctot, “Becoming a Competent 21st Century Legal Ethics Professor: Everything You Always Wanted to Know About Technology (But Were Afraid to Ask)” //Legal Ethics Forum

OTHERWISE: Legal Ethics Forum: Catherine Lanctot, "Becoming a Competent 21st Century Legal Ethics Professor: Everything You Always Wanted to Know About Technology (But Were Afraid to Ask)".
Article. (Catherine Lanctot’s article, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke Law Journal 147-259 (1999) was one of the first — the very first? — long form article applying the Law Governing Lawyers to lawyers’ behavior in cyberspace.) Abstract of her new article:

This Article provides a roadmap for rebooting the legal ethics curriculum. It describes how to revise a traditional legal ethics class to respond to twenty-first century law practice, and provides a detailed overview of the landscape of technological issues currently affecting the practice of law, including many cautionary tales of lawyers who ignored their ethical responsibilities.

We have finally hit the tipping point with respect to the use of technology within the legal profession, as bar regulators have begun to warn attorneys that they may no longer plead ignorance of technological advances if such ignorance harms the interests of their clients. With technological competence becoming more important for lawyers with each passing year, we do our students a disservice if we do not prepare them adequately for their future in the law.

Legal ethics professors are uniquely situated to impress upon our students the obligation to understand the risks and benefits of technology in the practice of law. But before we can ensure that our students are competent to enter a world of rapid and disruptive technological change, we need to be sure that we are competent ourselves. This may be unwelcome news for many colleagues, especially those who still harbor a little bit of the Luddite spirit that has always been a part of the legal profession.

Integrating ethical issues arising from technology can be readily accomplished if we commit ourselves to carrying out this objective. By embracing the challenge of imbuing our approach to the study of legal ethics with a focus on technological innovation, in both our teaching and our scholarship, we can be important voices at this time of transformation.

NCAA proposes deep cuts in O’Bannnon class counsel fee application

Plaintiffs counsel Michael Hausfeld
The NCAA has filed its opposition to the plaintiffs lawyers motion for $50 million in counsel fees in O’Bannon v. NCAA. The NCAA argues that plaintiffs should recover only $9 million in counsel fees and proposes steep reductions in cost recovery.
In August 2014 U.S. District Judge Claudia Wilkens ruled that the NCAA violated antitrust law by preventing student-athletes from being compensated for their name, image and likeness rights.
Wilken’s ruling allows schools to pay athletes licensing money into a trust fund starting in 2016. Financial damages were not part of the trial, but Wilken said the plaintiffs “shall recover their costs from the NCAA.”
The NCAA argues that plaintiffs lawyers application is flawed in that it they may not recover fees for work done on the case prior to September 1, 2012 when their theory of the case changed; they may not recover fees for work done solely to advance claims upon which they did not prevail in substantial part, or for claims that were essentially abandoned; nor may they recover for “work that was unnecessary, redundant and inefficient, unsupported by plaintiffs’ billing records, or that did not reflect sound billing judgment”. Finally the NCAA argues that much of plaintiffs’s claims of costs are “unsupported by their submission or the law”.

via OTHERWISE: NCAA proposes deep cuts in O'Bannnon class counsel fee application.

NJ Supreme Court Considers Disgorgement Remedy for Disloyal GC // NJLaw Journal

In Kaye v. Rosefielde the Appellate Division of Superior Court held that a lawyer who worked as an independent contractor at the jobs of General Counsel and Chief Operating Officer had an implied attorney-client relationship with Kaye the principal of two Atlantic City businesses.  That subjected the lawyer to RPC 1.8 governing lawyers business involvements with current clients.

The App Div affirmed most of the trial judge’s findings but limited the remedies.  Upheld were voiding the lawyer’s interests in businesses he formed for the client, awarding counsel fees, and punitive damages. But Judge Nugent  denied the demand that the lawyer disgorge the $550,000/year he had been paid as in-house counsel and personal counsel.  Wages paid are not damages defendants have argued.

The New Jersey Supreme Court granted certification “limited to the issue of whether the Appellate Division erred by affirming the trial court’s holding that economic damages are a necessary prerequisite for disgorgement of the employee’s salary.” – gwc

via OTHERWISE: NJ Supreme Court Considers Disgorgement Remedy for Disloyal GC // NJLaw Journal.