Florida Bar Adopts New Professionalism Expectations

The Florida Bar Board of Governors adopted a new set of “Professionalism Expectations” on January 30, 2015. These Expectations  are divided into seven categories:

1. Commitment to Equal Justice and to the Public Good;

2. Honest and Effective Communication;

3. Adherence to a Fundamental Sense of Honor, Integrity, and Fair Play

4. Fair and Efficient Administration of Justice;

5. Decorum and Courtesy;

6. Respect for the Time and Commitments of Others; and

7. Independence of Judgment.

The vast majority of the expectations are expressed as “should” or “should not” which is to signal, as stated in the Preamble, that these are recommendations of correct action rather than matters covered by the Professional Rules of Conduct. A few of the expectations are stated as “must” or “must not” to indicate that they correlate with the Rules.

For a full copy, see here:

I am not convinced that this additional layer of recommendations will add much to the professionalism of Florida Lawyers, but let’s see.

Why We Need Law Schools – Noah Feldman – Bloomberg View

By Noah Feldman

Who needs law school? For centuries, the answer in the English-speaking world was: no one. You prepared for the bar by serving as an apprentice or an intern alongside practicing lawyers. Sure, you had to read a lot of cases. At first, they probably made no sense. But over time, you learned by watching and doing to connect the decisions in the books with real cases and real clients.

Today there’s renewed talk of returning to a world where you could join the bar after extended internships rather than formal legal study. I’m a law professor, so you’d expect me to defend the current system.

Before I do, however, let me make a big admission: Law school isn’t really necessary for lawyers or their clients. Practicing lawyers could, if they had the time and inclination, train interns to become excellent practitioners who fulfilled their obligations to their clients more than adequately. In fact, at big law firms in big cities, and smaller firms everywhere, partners and senior associates still do spend a lot of time informally training junior associates. If they didn’t, the junior lawyers wouldn’t be very good.

Graduating from law school, even having learned everything the professors have to teach, doesn’t prepare you to practice at a high level. Lawyering is an art, not a science. And the only way to learn an art well is by doing it. Yet law school is absolutely essential — not for lawyers with clients, but for our society as a whole. The reason has everything to do with what makes law distinct as a social phenomenon.”

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via OTHERWISE: Why We Need Law Schools – Noah Feldman – Bloomberg View.

Willingham Prosecutor Accused of Misconduct // The Marshall Project

In a major turn in one of the country’s most-noted death penalty cases, the State Bar of Texas has filed a formal accusation of misconduct against the county prosecutor who convicted Cameron Todd Willingham, a Texas man executed in 2004 for the arson murder of his three young daughters.

Following a preliminary inquiry that began last summer, the bar this month filed a disciplinary petition in Navarro County District Court accusing the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar investigators charged.

via OTHERWISE: Willingham Prosecutor Accused of Misconduct // The Marshall Project.

Louisiana Prosecutor Stroud’s apology to Glenn Ford

OTHERWISE: Louisiana Prosecutor Stroud's apology to Glenn Ford.

“Glenn Ford deserves every penny owed to him under the compensation statute. This case is another example of the arbitrariness of the death penalty. I now realize, all too painfully, that as a young 33-year-old prosecutor, I was not capable of making a decision that could have led to the killing of another human being.”
Video of statement by Marty Stroud, II, prosecutor of Glenn Ford, who was convicted of capital murder and later exonerated. “I believe my failure in that case was that I should have done more…Ford was represented by two men who had never tried a jury case.”

H&R Block’s immigrant legal services…now shut down

From Richard Granat, H&R Block Forced to Shut Down Immigrant Document Service by the Bar | eLawyering Blog

H&R Block launched an experimental and innovative service in Texas in January to assist immigrants in completing INS forms. The forms were powered by software and H&R Block’s role was to provide a service to assist users in completing the forms within their offices– , but no legal advice was to be provided.

It didn’t take long for the organized immigration bar to shut this service down.

More details here:  http://buff.ly/1xn92pl

Lawyer Well-being and Mental Health in the News

Several recent articles have called attention to the challenges that lawyers face in the midst of this stressful profession.

The Florida Bar News recently highlighted the problem of lawyer suicide in a provocative article by Scott Weinstein, Clinical Director for the Florida Lawyers Assistance Program.

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/5c5dc6e5081d87cf85257df5004a43cc!OpenDocument

The March 2015 ABA Journal also features an article by Stephanie Francis Ward on lawyers who self-medicate to address the stresses of the profession. This article includes an excellent directory of national referral services.

http://www.abajournal.com/magazine/article/lawyers_who_self_medicate_to_deal_with_stress_sometimes_steal_from_those

I discussed both of these articles in the context of the Chapter 6 duty to report misconduct materials, and the class quickly evolved into a lively discussion of the challenges confronting law students, and the role that drugs, alcohol and mental health play.

Please note the upcoming ABA Mental Health Day activities scheduled for March 27, 2105.

http://www.americanbar.org/groups/law_students/initiatives_awards/lshealth.html

The time is now to have your law school participate in this important national initiative. This is an opportunity to highlight professionalism and the relationship to wellness, and distribute information information including your local lawyers assistance program.

A victory for the FTC and teeth whiteners…will legal service providers be next?

Last week the Supreme Court issued a 6-3 opinion affirming the Fourth Circuit’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission. In the decision below, the Fourth Circuit upheld the FTC’s determination that the Board of Dental Examiners violated antitrust law in issuing cease-and-desist letters to non-dentists performing teeth whitening services, finding that the Board acted as a group of private dentists rather than as a state actor. Agreeing with the Fourth Circuit, Justice Kennedy, writing for the majority, observed: “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult for even market participants to discern. Dual allegiances are not always apparent to an actor.” The decision may have implications for state bar regulators, particularly regarding unauthorized practice of law enforcement.

For more about the potential impact of the case on the legal profession, see Ken Friedman’s Forbes article (he’s the VP of Legal and Government Affiars for LegalZoom) and commentary from PrawfsBlawg. (Disclaimer, I assisted in authoring an amicus brief on behalf of LegalZoom and others. I’m also working on a paper about antitrust enforcement and the legal profession—I hope to be posting it soon…)

Conflicts and competence ripped from the headlines…

If you’re teaching conflicts or competence at the moment here are a couple of scenarios to explore, ripped from the headlines over the past week:

  • A recent NYT Deal Book column explores the complications and conflicts associated with a marriage between Mary Jo White as she leads the Securities Exchange Commission and her husband John White as he practices law at Cravath, Swaine and Moore. Apparently she’s had to recuse herself from at least 10 investigations involving Cravath representations in addition to cases involving her former firm Debevoise & Plimpton.

Keeping Law Students Motivated and Connected

These days, law students seem less and less likely to check email on a regular basis.  I try to take this into account in my teaching and limit communications to those which are necessary, but in flipped and asynchronous courses, and even in my traditional and blended courses, communication – and motivation – is key.

A year ago, I discovered Remind.  Remind is a free service that allows me to communicate with my entire class via text, without the students knowing my phone number or me knowing theirs.  And, it allows me to schedule texts in advance, as far out as I want.  Students can choose whether to receive the text via phone or email; I give them the option, but tell them they are accountable for the information.

Remind is terrific; students love it, as do I.  I assure them that I will not abuse the privilege of using Remind, and I keep that promise.  Once the course is over, my last text is: “Grades are turned in!”  I highly recommend Remind (and I am not a paid spokesperson).

Here are three tips from a quick piece I did on using Remind in law schools, and higher ed generally, which may help you get started.  I am happy to answer any questions: murphyme@wfu.edu.

Round 2 DePuy Hip Implant Settlement Proposal Explained

via OTHERWISE: Round 2 DePuy Hip Implant Settlement explained.
RPC 1.2 binds the lawyer to the client’s objectives (fair compensation in a personal injury case). The client retains the right to cosnsent to settlement-or not. In this law firm website a good job is done of consultation – preparing the ground for the critical discussion with the client.
But at this stage of a mass product liability case a key variable is unknown: what percentage acceptance of the offer will trigger Johnson & Johnson’s payment obligation. That will be key to the selling of the deal. – gwc

On Friday, February 20, 2015, DePuy/ Johnson & Johnson agreed to pay approximately $420 million more to resolve approximately 1400 additional DePuy ASR lawsuits. The order came from the Court extending the settlement offer to Plaintiffs who had revision surgery after August 31, 2013 up through January 31, 2015.

From the beginning of this litigation, almost five years ago, our goal at Childers, Schlueter & Smith has been to prosecute cases aggressively until DePuy accepted responsibility for its actions and offered to settle viable cases, or until viable cases were tried before a jury.  While we are pleased that DePuy has proposed a second round of settlements now for certain plaintiffs.

There are a number of very important issues we want all ASR patients to be aware of given this recent proposal:

1)      This is not a blanket, one-size-fits-all settlement proposal. DePuy’s proposal set outs specific terms which determine the individual settlement amounts for each person’s case (see below). As we have always maintained, all ASR cases are different.  Because of the differences in each case, the proposed settlement amounts for all claimants will be different.

2)      The settlement proposal is just that – a proposal – which you are not required to accept.  Individual claimants in any case can accept or reject any settlement offer.  At CSS, we evaluate each case and determine, as precisely as possible, the amount of compensation you would likely receive under the proposed settlement and whether it makes sense to continue under the program. For most it does, for a few select others it may not.

What are the terms of the settlement?
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via OTHERWISE: Round 2 DePuy Hip Implant Settlement explained.