The California Rules Revision Commission is fast-tracking approval of two rules about prosecutor behavior. From the State Bar Of California:
Last month, the North Carolina Business Court entered a Consent Judgment in litigation between the North Carolina State Bar and LegalZoom.com. (LegalZoom filed that lawsuit seeking a declaratory judgment that it is not engaged in the unauthorized practice of law (in violation of the NC General Statutes); the State Bar filed a counterclaim alleging that LegalZoom’s activities constituted the unauthorized practice of law.) You may find the State’s Bar summary here and the consent judgment here.
The ABA Commission on the Future of Legal Services has issued its final Resolution & Report: Regulatory Objectives. This Resolution is scheduled for a vote at the February 2016 San Diego ABA Midyear Meeting. The draft objectives can provide the basis for a useful discussion in Chapters 2 and 9 regarding the purpose of regulation. (The ABA/BNA Lawyers’ Manual article about these regulatory objectives is available here.)
Full disclosure: I am on record as supporting regulatory objectives. As I explained in my Oct. 30, 2015 comment letter, I believe that regardless of what one thinks about recent market and regulatory developments, it is useful to have regulatory objectives:
My final comment is that it is important for the Commission and ABA members not to allow controversies about regulatory developments in the United States or elsewhere to derail the discussion about Model Regulatory Objectives. Many of the recent lawyer regulatory developments have been quite controversial. As I have noted in several articles, one way to think about both market and lawyer regulation developments is that they present issues regarding the “who-what-when-where-why-and-how” of lawyer regulation. For example, the North Carolina Dental Board case and the 2007 UK Legal Services Act raise issues about who it is that should regulate lawyers; LLLT, entity regulation, and ABS developments raise issues about what it is that should be regulated; the UK’s outcomes focused regulation raises questions about how regulation should occur. While these who-what-when-where-why-and-how issues have become intertwined in particular jurisdictions, it is important for U.S. jurisdictions to recognize that these issues are separable.
I believe that it is exceedingly important for a jurisdiction to ask itself the “why” question – why does the jurisdiction regulate lawyers and what it is trying to accomplish? I don’t think that asking the question of why a jurisdiction regulates presupposes a particular answer to one of the controversial “who-what-when-where-or-how” lawyer regulation issues. Moreover, failing to ask the “why do we regulate?” question doesn’t mean that the difficult issues are going to go away. Whether one likes it or not, there are market and regulatory developments in the United States and elsewhere that will be cited during regulatory debates. If a regulator can say what it is trying to achieve, its response to a particular issue – whatever that response is – should be more thoughtful and should have more credibility. It seems to me that this is in everyone’s interest.
Tom Gordon, Executive Director of Responsive Law, explains more in today’s USA Today:
Imagine that at tax time you’re required to either fill out your 1040 without help or pay a CPA hundreds of dollars to do it for you. There’s no H&R Block, and while TurboTax exists, it’s under constant siege by state regulators for being an unlicensed accountant.
That’s analogous to the situation that most Americans face whenever they have a legal issue. For even simple matters, they have to either do it themselves, hire a lawyer for over $200 an hour or use software that can do the job well but which the lawyer cartel is trying to put out of business.
Responsive Law’s Report Card on Barriers to Affordable Legal Help, which will be released Thursday, grades each state on how restrictions created by lawyers make legal help expensive and inaccessible for its residents. No state received a grade above a C. The two factors most responsible for the low grades are restrictions on who can provide legal services and restrictions on the corporate structure of law firms.
For a basic will or uncontested divorce, a consumer could be well served by a competent professional other than a lawyer. However, in most states, only lawyers are allowed to provide these services. State bars have used vaguely worded restrictions on the “unauthorized practice of law” to bring legal actions against everyone from major companies like LegalZoom to small mom-and-pop operations.
The worst offender in restricting competition is Florida, which received an F in the category of Barriers to Non-Lawyer Help. The Florida Bar has a $1.97 million annual budget dedicated to enforcement of unauthorized practice restrictions that it has used to pursue charges against people like Katie Vickers, a senior citizen who helped a fellow parishioner at her church with completing workers compensation forms.
by John Q. Barrett (St. John’s University School of Law)
The new film “Bridge of Spies” reports, in on-screen text, that it is “[i]nspired by true events.” Tom Hanks plays a character named James Donovan. He is a 1950s New York City lawyer. He represents insurance companies in policy coverage controversies—in one, the issue is whether his client, the insurer, is liable for the damages that an automobile driver caused by hitting five motorcyclists.
Then Donovan is recruited by the bar and bench in Brooklyn to represent Rudolf Abel, whom the United States has arrested and charged with being a Soviet spy.
What qualifies “insurance lawyer” Donovan to take on this high profile criminal defense job at the depths of the U.S.-U.S.S.R. Cold War? Well, as a colleague mentions to Donovan, “You distinguished yourself at Nuremberg.”
Donovan’s response is both an acknowledgement and, implicitly, a disclaimer that he is the right attorney to handle Abel’s defense: “I was on the prosecution team.”
* * *
Seventy years ago, the real James Britt Donovan indeed was a young but senior and very significant member of Justice Robert H. Jackson’s U.S. prosecution team before the International Military Tribunal (IMT) at Nuremberg. This post sets forth—including as background for your viewing of “Bridge of Spies,” which I recommend highly—some of Donovan’s life story, including his Nuremberg work.
Here’s a basic infographic I use when teaching the Rules re: screening for conflicts.
You can use without an account with this link: https://magic.piktochart.com/output/7124791-lawyer-screening-who-when-how
Just click “Present” in the top right corner.
Questions? Ellen @ firstname.lastname@example.org
Quid pro quo…or no?
by Benjamin Weiser and Susanne Craig
New York’s ornate Capitol building in Albany, a plan two years in the making was taking root. Everyone would benefit: Victims of mesothelioma, a rare but deadly form of cancer caused by exposure to asbestos, would be sent to a reputable law firm; the firm would pick up new clients; and a well-regarded cancer research clinic would receive funds.
And at the center of all this was Sheldon Silver, then the State Assembly speaker, prosecutors say.