Canada’s largest legal province creates task force to consider more proactive lawyer regulation

During its June 25, 2015 meeting, the governing body of The Law Society of Upper Canada, which regulates Ontario lawyers, approved the creation of a task force to study compliance-based entity regulation (and another Task Force to promote wellness and address mental health and addiction issues.)  The LSUC action was based on a report found here which was prepared by the Law Society’s Policy Secretariat and contains useful background information and a proposed structure for each task force.

The information about the task force on compliance-based entity regulation starts on p. 8. The Report explains at paragraphs 30-31 that “Compliance based regulation shifts regulatory emphasis from responding to complaints and enforcement through discipline to a proactive approach in which goals, expectations and tools for licensees are established. This means that licensees can themselves ensure that they have appropriate systems and processes in place to achieve regulatory compliance. Compliance-based regulation has been generally been implemented together with entity regulation. The goal is the improvement of regulatory results through a set of defined objectives that all legal services providers seek to achieve, on the basis that practice processes and systems are most effectively addressed at the firm or entity level.” See here.

 The LSUC press release about the new Task Force is found here.  For information showing US interest in proactive lawyer regulation, see the Session 1 materials from the ABA CPR’s 40th National Conference on Professional Responsibility held in Long Beach and a forthcoming Entity Regulation FAQ document that will be posted on the National Organization of Bar Counsel’s NOBC webpage.

Crime Fraud Exception for GM’s Outside Counsel in Deadly Ignition-Switch Litigation?

The National Law Journal recently published a story about the possible application of the crime fraud exception to attorney client privilege in the deadly GM ignition-switch cases under the headline “What Did Counsel to GM Know? Plaintiffs allege that GM’s outside counsel, King & Spalding, encouraged GM to enter into confidential settlements to avoid revealing the ignition-switch defects. The plaintiffs allege that King & Spalding had a responsibility to tell federal regulators about the defect if GM did not. The underlying fact scenario of the case is a classic example of the interplay between attorney-client privilege and the exceptions to client confidentiality, and can serve as an example of the obligations of a lawyer or law firm employed by an organization under ABA Model Rule 1.13. One of the lawyer’s for the plaintiff’s claims that there is no evidence so far that King & Spalding advised GM to report the defect to the proper federal authorities, and that “[t]he only focus was settling cases and moving on.”

In January, the New York Times wrote a related story “Victims of GM Deadly Defect Fall Through the Legal Cracks” The article explains how damage caps in many states, combined with GM’s legal strategy to make suing it costly, prevented many injured and families of those injured and killed from obtaining lawyers willing to sue GM over the ignition-switches. Many injured persons and families of those who died found that when non-compensatory damages were capped at $300,000 to $400,000, GM was able to make suing it too costly for plaintiffs’ lawyers to take the cases. This was especially true when victims were young or elderly and had negligible economic damages. When GM did settle, often confidentiality agreements kept the dangerous ignition-switches secret. The story claims that at least 42 persons died in crashes linked to the faulty switches, and GM was able to keep the problem largely hidden for more than a decade. The New York Times story is useful to show how damage caps combined with certain defense strategies can have public safety consequences.

Client Confidentiality Even Applies to Public Information

The California State Bar Standing Committee on Professional Responsibility & Conduct recently proposed an ethics opinion, Proposed Formal Op. 13-0005, available here, that should clear up something that many lawyers often fail to understand – a lawyer may never reveal embarrassing or detrimental secrets they learn about a client through representation even if the information doesn’t come from the client or is publicly available.

Some lawyers conflate attorney client privilege and client confidentiality, or believe that embarrassing or detrimental client information they learn through the representation of client, even if not from the client, is not covered under their duty of confidentiality if the information is available to the public. The proposed ethics opinion sends a clear message that both of these beliefs are wrong. The proposed ethics opinion also makes clear that the duty of confidentiality continues even after the client-lawyer relationship ends.

The California Bar is asking for comments on the proposed opinion through August 27, 2015, and follow this link to learn how to submit comments

APRL’s Advertising Committee Issues Report

Relevant to Chapter 3: see ASSOCIATION OF PROFESSIONAL RESPONSIBILITY LAWYERS 2015 REPORT OF THE REGULATION OF LAWYER ADVERTISING COMMITTEE . The opening paragraph of the Executive Summary states: “The rules of professional conduct governing lawyer advertising in effect in most jurisdictions are outdated and unworkable in the current legal environment and fail to achieve their stated objectives. The trend toward greater regulation in response to diverse forms of electronic media advertising too often results in overly restrictive and inconsistent rules that are under-enforced and, in some cases, are constitutionally unsustainable under the Supreme Court’s Central Hudson test. Moreover, anticompetitive concerns, as well as First Amendment issues, globalization of the practice of law, and rapid technology changes compel a realignment of the balance between the professional responsibility rules and the constitutional right of lawyers to communicate with the public.  ……

Based on the survey results, anecdotal information from regulators, ethics opinions, and case law, the Committee concludes that the practical and constitutional problems with current state regulation of lawyer advertising far exceed any perceived benefits associated with protecting the public or maintaining the integrity of the legal profession, and that a practical solution to these problems is best achieved by having a single rule that prohibits false and misleading communications about a lawyer or the lawyer’s services. The Committee believes that state regulators should establish procedures for responding to complaints regarding lawyer advertising through non-disciplinary means. Professional discipline should be reserved for violations that constitute misconduct under ABA Model Rule 8.4(c).3 The Committee recommends that violations of an advertising rule that do not involve dishonesty, fraud, deceit, or misrepresentation under Rule 8.4(c) should be handled in the first instance through non-disciplinary means, including the use of advisories or warnings and the use of civil remedies where there is demonstrable and present harm to consumers.

Terry (and Perlman) on “the law of legal services”

Our own Laurel Terry offers an insightful Jotwell review of a recent article by Andy Perlman, where he makes the case for a “law of legal services,” expanding regulation beyond what we traditionally conceive of as the “law of lawyering.” According to Terry: “…we may be getting close to a tipping point in which we begin to take seriously the notion of a ‘law of legal services.’ Professor Perlman’s thoughtful and measured article, his legal services ‘pyramid,’ and the model rule he includes in his article provide a useful way to start thinking about whether and how we might go about reimagining the regulatory space in which we operate.”


Hello, all! Thanks for welcoming me as a guest blogger. I’m happy to share my recent articles in my two-part project on attorney-whistleblowing. The first, entitled Advocate or Adversary? When Attorneys Act as Whistleblowers, examines whether attorneys may receive whistleblowing bounty rewards from the SEC under Dodd-Frank and the ethical concerns surrounding this issue. This article is forthcoming in the Georgetown Journal of Legal Ethics and available on SSRN by clicking here.

In my second piece, Conflicted Counselors: Retaliation Protections for Attorney-Whistleblowers in an Inconsistent Regulatory Regime, I examine a separate but related issue of retaliation protections for attorney-whistleblowers under Dodd-Frank in light of their reporting requirements under Sarbanes-Oxley. This article places special focus on in-house counsel and examines the various (and conflicting) regulatory regimes that govern attorney-whistleblowers in the corporate sector. You can access the article on SSRN by clicking here.

I hope you find these fruitful as this issue develops! If you would like to discuss more, please feel free to email me at

People v Yadnez: To Which Conflicts Does Cuyler v. Sullivan Extend?

The Colorado Supreme Court recently granted cert in the case of Nathan Yadnez (2015 WL 929996), and the decision likely will provide additional guidance on how far the rule from Cuyler v. Sullivan, 446 U. S. 335 (1980), will extend to conflicts of interest beyond those rising from simultaneous representation of co-defendants or co-participants.

The relevant facts are straightforward.  Defendant Yadnez murdered his mother at the age of 16.  Yadnez’s father, also husband of Yadnez’s mother, hired and paid a lawyer to represent his son.  The father also was a witness for the prosecution.  There were allegations of child abuse that were neither investigated nor raised by the defense.  There was no conflicts waiver.

The question is whether Yadnez’s lawyer was operating under an actual conflict of interest that adversely affected the representation, constituting ineffective assistance of counsel. The Court of Appeals found that there was a conflict, but arising solely from the fact that the lawyer was being paid by father, not sufficient to meet the ineffective assistance of counsel standard.  Defendant Yadnez argues that under Sullivan, the conflict is not merely a Rule 1.8 conflict based on third party payment of fees.  Instead, it is a nonconsentable conflict under Rule 1.7, because the father was a victim of the crime and a necessary witness for the prosecution, creating a risk of a material limitation on the representation, not merely a conflict arising from the payment of legal fees by the father.

Guest Blogger Jennifer Pacella

We are pleased to welcome Jennifer Pacella of the City University of New York, Baruch College, Zicklin School of Business as guest blogger. Jennifer is Assistant Professor of Law at the School of Business. She has taught Fundamentals of Business Law, The Law of Business Organizations, and the Law of GRC (Governance, Risk Management, and Compliance) & Whistleblowing. Her research interests include attorney whistleblowing and the Dodd Frank Act. She received her J.D. from SUNY Buffalo, her Master’s in Political Science from UNC, and her Bachelor’s in Political Science from SUNY Geneseo. Her prior professional experiences include clerking for the Third Circuit Court of Appeals and working as an associate at Shearman & Sterling LLP in New York City in its Financial, Securities & Commercial Law group. I am an admirer of her recent work on in-house counsel and whistleblowing. Welcome, Jennifer!

Connecting With Students in the Virtual PR Classroom Using Informal Videos

One of the best ways to connect with students in the virtual classroom is to use informal videos for periodic updates and check-ins.  These videos are different from what I call instructional videos.  I use instructional videos to cover doctrinal fundamentals, with follow-up assessments and activities to deepen and assess learning.  For example, in my PR course, I may have a pre-recorded video on Rule 1.6 confidentiality vs. the attorney-client privilege.  While there are techniques for connecting with students in these instructional videos, because I create the videos well before the semester start and because they may be used for more than one semester, these videos often lack personalization.

To increase personalization and to better connect with an individual class, I use informal videos to start each unit.  These are short, typically 4-5 minutes, and include a quick review of the previous week and a few comments about the upcoming material.  I try to always reference one or more student’s work and to include anything else that lets the students know they are heard; I may also discuss a current event or recent issue.  While my more-formal instructional videos display my screen images (power points and other visuals) covering the doctrinal material, these informal videos are just me, speaking directly to the students.

This is how it works in my current, asynchronous summer class.  I email the week’s assignments before noon on Monday, with all work due by 5 pm Sunday**, giving me time to review on Sunday evening what the students understand and where they need more help.  On Monday morning, as I prepare to send out the weekly assignments, I create my short video and send it with the materials.  Here’s an example; I made this video using the free version of Screencast-O-Matic, my computer’s built-in web camera, and a $24 headset.  You will note it is not scripted, not professionally staged or lighted, and not edited; the goal is conversational.

These quick, easy, informal videos allow me to personalize what is often erroneously assumed to be a canned course.  As always, I’m happy to answer any questions:

**While some asynchronous courses give students complete control over pacing, our course does so on a week-by-week basis.  In other words, students work independently on one unit each week and are required to complete all components of the unit within the week.  All assignments are due on a specific day, at a specific time.  This allows students to act as a cohort of sorts throughout the course, facilitating both formal and informal group work.  It also allows students to feel more connected to one another and prevents any one student from getting too far behind – or too far ahead.

Death toll rises to 114 in GM ignition defect recall cases //AP

OTHERWISE: Death toll rises to 114 in GM ignition defect recall cases //AP.

Last year the Valukas report – prepared by Jenner & Block for the GM Board presented a devastating account of the willful blindness entrenched by GM’s General Counsel.  Since the blind do not see it appears that no one knew or cared to know of the scale of the catastrophe an odd little flaw in the ignition switch mechanism had wrought.

Davis Polk Law Firm Rebuked by Judge in A.I.G. Case

What ethical obligations do lawyers have if they harbor serious doubts about the legality of their client’s plan of action?  What if that client is the federal government (the Treasury Department and the Federal Reserve Bank of New York) and the plan of action is bailing out A.I.G. to avert (or mitigate) a nationwide financial crisis?

Yesterday (June 15, 2015), Judge Thomas C. Wheeler of the United States Court of Federal Claims issued a ruling, which–among other things–rebuked the law firm of Davis Polk for blessing the transaction which gave the government a nearly 80 percent equity stake in A.I.G. The ruling cites an email from a Davis Polk lawyer in which the lawyer noted that the government “is on thin ice and they know it.”

The full story and the link to the 75 paged ruling are here.



Post-9/11 Torture at CIA “Black Sites” — Physicians and Lawyers Working Together — NEJM

Post-9/11 Torture at CIA “Black Sites” — Physicians and Lawyers Working Together — NEJM.

by G.J. Annas, J.D., M.P.H., and Sondra S. Crosby, M.D.Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health (G.J.A., S.S.C.), and the Department of Medicine, Boston University School of Medicine (S.S.C.

Beyond the elimination of black sites, attorneys will have to stand with physicians who want to maintain their ethics (and follow, among other legal standards, the Geneva Conventions), support health professionals in their refusals to torture, and refuse to give CIA agents and contractors prospective legal immunity for violating human rights laws. And in all contexts, physicians should act only in ways consistent with good and accepted medical practice, with the consent of their patients.

Primus and Ohralik in the Facebook-era

When I teach lawyer advertising and solicitation, I often pose the following hypothetical to my students: Is the use of social media like Facebook to reach potential clients permissible solicitation under the precedent of In re Primus (where the Supreme Court held that North Carolina could not bar an ACLU attorney from holding gatherings to inform women about their civil rights after they had been sterilized on condition of receiving public medical benefits) and Ohralk v. Ohio State Bar Association (decided the same day as Primus, with the Supreme Court holding that an ambulance chaser could be barred from soliciting clients at the hospital bedside). My hypothetical is now a reality–from Bloomberg News comes this article on how law firms are using Facebook to solicit medical victims (h/t Professor Elizabeth Tippett of Oregon Law, whose scholarship focuses on lawyer advertising and marketing, among other topics).

An excerpt:

For ambulance chasers, persistence and a phone book just don’t cut it anymore. Law firms, which once relied on television commercials, billboards, and cold calling numbers in the white pages to find plaintiffs for medical lawsuits, have begun to embrace technology. To locate their ideal pharma victims more quickly and at lower costs, they’re using data compiled from Facebook, marketing firms, and public sources, with help from digital bounty hunters like Tim Burd.

Dewey & LeBoeuf Criminal Trial Has Begun

It is a rare event when the top managers of a major, venerable U.S. law firm are being criminally prosecuted for fraud.  So those of you who plan on teaching Chapter 6, Part II (Duties to Third Parties and to the Law) may want to take advantage of the ongoing trial involving top executives of the law firm of Dewey & Leboeuf, which collapsed in bankruptcy in May 2012.   The trial is expected to last (by some accounts) until Labor Day.

Opening statements began on May 26, 2015 in the New York Supreme Court before Justice Robert M. Stolz. The defendants, former chairman Steven Davis, executive director Stephen DiCarmine, and chief financial officer Joel Sanders were charged with concealing Dewey & LeBoeuf’s failing financial situation from lenders and creditors, including insurers that invested in a debt offering to raise about $150 mililion.

Natasha Lydon from Above the Law is reporting on the trial.  Her recent post about the opening statements can be found here.

For background on the case, The New York Times has a fairly informative article here.

License to practice law granted to undocumented immigrant

From the New York Times comes news that Cesar Vargas has been admitted to practice law in New York, despite his status as an undocumented immigrant:

His legal fight to become a lawyer lasted three years. This week, Cesar Vargas, a Mexican-born 31-year-old New Yorker, became the first immigrant in the state without legal status to be approved to work as a lawyer.

An appellate panel of the State Supreme Court approved his application to the bar on Wednesday, overturning a 2013 decision by a committee that had denied his application based on his immigration status but had asked the court to rule.

In its decision, the state judiciary did what the Legislature in Albany has not been able to do: establish at least a modicum of immigration policy change.

The decision could be a test case, not only for the city, but also for the country, affecting hundreds of would-be lawyers and empowering immigrants who arrived as children to the United States and have been granted a reprieve from deportation.

Read the full article here.

Investigation of Christie Administration Raises Ethics Issues

In class, I have previously asked whether Gibson, Dunn’s representation of the Governor’s office raised conflicts of interest (for contrasting perspectives see here and here) or waived confidentiality by issuing a public report based on evidence gathered during the representation.  The latter question may come up in court in the context of defendant Bridget Kelly’s subpoena of the Gibson, Dunn interviews and notes underlying the report. Given that the trial is currently scheduled for the fall, these facts can also be used for timely hypotheticals.

LegalZoom files antitrust lawsuit against the North Carolina State Bar

Shortly after the Supreme Court’s 6-3 opinion earlier this year affirming the Fourth Circuit’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission I wondered here whether legal services providers would be next. LegalZoom answered that question this week, filing a complaint in federal district court against the North Carolina State Bar.

Connecting With Students in the Virtual Classroom Using Pre-Course Surveys

Qualtrics Survey MEM

One of the most frequent questions I get about teaching online – whether synchronously or asynchronously – is how to connect with students in the virtual environment.  While there may be a difference in the tools that you need online, the ways to engage students are the same as the traditional, physical classroom: motivation, personalization, and solicitation of their ideas.

I start each semester with a quick survey.  Completing the survey is required as part of our introductory assignments (which also include registering for our class on TWEN, reviewing class policies, etc.)  I then send each student an individual email acknowledging their responses and engaging them based on one or more answers.  Having used this technique for nearly 7 years, I find that most students are not only surprised to learn that their surveys are read, but pleased to make a personal connection.  The email serves not only an icebreaker and early motivator, but the answers help me better understand and know my students individually and collectively.

There are a number of free survey programs available; Survey Monkey is one. GoogleForms is another good option.  Many schools have licenses for professors for other programs as well; at Wake Forest Law, I use Qualtrics.  The questions from my most recent survey are below.  These are just a sampling; you can adapt for your course, teaching style, and needs.   The Chapter 1 multiple choice questions in our casebook are great options and first day conversation starter questions as well.
  1. Name
  2. I am a/an: 2L, 3L, LLM.
  3. The year immediately prior to law school, I was: (a) working (list where); (b) in school (list where and degree); (c) other (describe).
  4. Why did you come to law school?  Please answer truthfully.
  5. Describe your ideal post-law school job.
  6. Who do you believe regulates lawyers: (a) the relevant state government; (b) the federal government; (c) lawyers regulate themselves; (d) some combination of the above.
  7. I believe the legal profession is: (a) a business; (b) a profession; (c) both a business and a profession.
  8. Are you planning to take the MPRE on (insert semester MPRE date)?
  9. What is the last non-legal thing you read – ie, for fun (book, article, blog, etc.)?
  10. Please list any questions, comments, or concerns.
These surveys have worked so well that I have started incorporating them in all of my classes, virtual or not.  Next week, I’ll talk about connecting using short, informal videos at the start of each week or unit.  As always, I welcome your questions –