A Colorado lawyer was suspended from the practice of law for 18 months after disclosing confidential information about his clients in responding to their Internet complaints about his fees or services. According to the disciplinary order, the lawyer responded to the complaints “with Internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.” This type of disclosure of confidential information is not covered by any exceptions to confidentiality in Rule 1.6(b). In addition, the lawyer sued the clients for defamation and communicated directly with them, even though their lawyer had repeatedly asked him to stop contacting them. The order states that this violated the anti-contact rule, Rule 4.2. A story in the ABA Journal about the discipline case is located here.
The Third Circuit recently affirmed the lower court’s opinion that found Pennsylvania Rule of Admission 204 constitutional. This rule allows experienced attorneys to be admitted to the Pennsylvania bar without taking the Pennsylvania bar exam provided they are barred in a “reciprocal state,” that is, a state that similarly admits Pennsylvania attorneys by motion without requiring them to take that state’s bar exam.
The Bar Standards Board (BSB) is the “frontline” regulator for barristers in England and Wales; the overarching regulator is the Legal Services Board (LSB).
Yesterday the LSB approved a proposal from the BSB to change the “cab rank rule” which says, in essence, that barristers are required to accept clients who request their services. (In other words, they are similar to “taxi cabs” and have to accept the person who “hailed” their services.)
The new rule allows barristers to refuse work from a professional client who, in the reasonable opinion of the barrister, presents an unacceptable credit risk. (The previous rule only allowed barristers to decline work from solicitors on a specified list.) For information on the history of this rule and the consultations, see here and here.
For those teaching Professional Responsibility, the English cab rank rule, even as amended, can be contrasted with the ABA Model Rules. The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments. (Rule 6.1 encourages but does not require the acceptance of a certain number of pro bono cases).
Prosecutorial discretion is a principal driver of disparities in law enforcement in the U.S. But behind that is often police discretionary enforcement. The U.S. Supreme Court has virtually blocked challenges based on racial or ethnic disparate impact absent rigorous proof of discriminatory intent. Since Washington v. Davis(1976) more than “volition” or “awareness of consequences” is required to prove purposeful discrimination.
Dean Johnson therefore sees little reason to expect courts to address the racially disparate impacts of deportation enforcement which is driven for many reasons by the ordinary criminal justice process. Legislators are more likely to be responsive, he suggests. Is it unrealistic to hope that prosecutors and defenders could be drivers of a campaign to improve our record on the principle of treating like cases alike? Is RPC 8.4’s command against “conduct prejudicial to the administration of justice” a tool against discrimination? Or is it limited to purposeful “bias” in the Washington v. Davis sense? – gwc
by Kevin Johnson (Dean, UC Davis Law School)
The U.S. immigration removal system targets noncitizens who are involved in criminal activity. Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse). State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police. Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals.
The cover story in this week’s Bloomberg Businessweek, titled “Are Lawyers Getting Dumber?” covers last year’s dispute between the National Conference of Bar Examiners and law school Deans on whether the 2014 bar exam was too hard, or the students too unprepared. Always interesting when legal ed hits mainstream media.
The Supreme Court of Ohio’s Board of Professional Conduct has issued advisory opinion 2015-1. The Board concludes that in its opinion “A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs. ”
In the opinion of the Board the oath of office to uphold the state and federal constitutions, and the Code of Judicial Conduct’s injunction to comply with the law (Jud. Cond 1.1) ) act fairly and impartially (Jud. Cond. R. 2.2), and act without “bias of prejudice (Jud. Con. 2.3) compel the conclusion that a judge may not refuse to perform same sex marriages while performing heterosexual marriages.
One conservative Catholic, Richmond law prof Kevin C. Walsh laments at Mirror of Justice blog that the opinion turns the judicial authority to perform marriages into a mandate. He further objects that the Ohio Board’s opinion “gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that “[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.”
The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges “apply the law without regard to whether the law is ‘popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'” Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges’ personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.”
Walsh’s lambastes would be well founded, in my view, if a judge were asked to bless a same sex union contrary to her belief that such conduct is sinful. But of course the Board said no such thing. At the root of Walsh and like-minded critics’ view is a confusion of the sacred and the secular. The performance of a marriage is a ministerial, not a Ministerial function. Judges like other public employees cannot pick and choose among favorites based on legally irrelevant criteria. If the issue were granting permits to march based on the religious or anti-religious message of the march Walsh, et al. would certainly agree that a judge cannot pick and choose. But marriage evokes a different set of emotions and Walsh loses sight of the basic point.- gwc
West Academic has made available an eBook only version of our textbook for purchase. Your students can purchase here.
The elementary model of the attorney client relationship is principal-agent, a private matter. But the tort system serves a larger public function. through it government promises a reliable system of recourse for wrongs. Particularly in personal injury cases the wrong is very personal. Yet aggregation of cases – a practical necessity – changes the negotiating lawyer into a broker for many, diluting the attorney-client bond. The lawyer becomes a principal, the client a commodity. Alexandra Lahav explores the issues. – gwc
How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.
The International Conference of Legal Regulators is a group of regulators that first met in London in September 2012. The idea behind the ICLR is that those who regulate lawyers face similar issues and would benefit by global conversations on these topics. (For example, regulators around the world face issues related to the impact of technology, globalization, & market disruption and issues of substance abuse by lawyers).
The ICLR met in San Francisco in 2013 (in conjunction with the NOBC meeting), London in 2014, and Toronto in 2015. You can access the materials from the 2015 Toronto ICLR Conference here; the materials from prior conferences are available as links from the current ICLR homepage. For more information about the creation of the ICLR, see this article about its formation. Legal profession regulators have been slower to form international networks than have some other types of regulators – for example, there are international networks of banking, antitrust, and medical regulators.
China’s Communist party last year made rule of law its overriding theme. They mean it. But they don’t mean it the way we mean it. They are talking about the regularization of procedures, of ways of doing things. They do not mean that lawyers and judges are free to contravene official policy. They mean good governance,not an independent bar and judiciary.
People who challenge the Communist Party’s monopoly on political power face arrest. So do those who would split Tibet or Xinjiang from China. But also vulnerable is anyone who rattles the cage as the Fordham-based Committee to Support Chinese Lawyers explains.
We American lawyers welcome the regularization and strengthening of the everyday operation of the Chinese legal system. We have fruitful exchanges and collaborations. Courts are improving. Law is developing. lawyers and law professors take law seriously. But advocacy that touches “sensitive” issues – a common Chinese euphemism – can run afoul of the authorities. That sort of repression we properly oppose. But as the ABA statement excerpted below demonstrates – there is a fear of jeopardizing working relationships. That is the chilling effect of the recent wave of arrests and detentions of dissident lawyers. – gwc
Statement of ABA President William C. Hubbard on Arrests of Lawyers in China
The ABA encourages the Chinese Government to permit lawyers to discharge their professional duty to assure achievement of the fair and just legal system that the Communist Party has promised to all its citizens. The ABA also urges the many foreign legal organizations, universities, NGOs and government agencies that have been cooperating with Chinese counterparts in advancing the rule of law to continue their collaboration, and encourages other foreign institutions that are objecting to the current treatment of lawyers in China to join in supporting those lawyers and cooperating with China.
Returning to our One To Watch from last week:
Today U.S. District Judge Nicholas Garaufis rejected the proposed class-action settlement between AmEx and various merchants based on the discovery last week that a lawyer for some of the merchants shared confidential documents with a rival attorney (who was also a friend and former colleague) for MasterCard in a parallel case. While the Court also expressed concerns with the substantive fairness of the settlement, it found it unnecessary to reach a conclusion on the merits because of the lawyer’s to rule on such merits because of the lawyer’s “improper…conduct” that “fatally tainted the settlement process.”
Noting that the opposing lawyer were in “frequent, possibly constant contact” about the settlement, and citing the “procedural unfairness” and “failure of adequate representation,” Judge Garaufis removed the merchants’ lawyer from the case, unfortunate news for the decade-old case.