Month: January 2016

China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy

George ConkLeave a comment

Source: China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy

The first gay marriage case has been registered by a Chinese court.  But the lawyer who filed it has been sharply criticized in an op-ed by a prominent lawyer who was once liaison of the central government to the semi-autonomous Hong Kong Government.

In the past courts rejected cases summarily or just ignored them if they were “sensitive”.  But in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.

Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).

We will soon see if China’s courts – which have no history of innovation without legislative authorization – will apply the broad principles of equal protection which its constitution declares and many laws embrace. – gwc

China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy

by Elizabeth M. Lynch

For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.

Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not….

KEEP READING

Right to Counsel in Contested Adoption

George ConkLeave a comment

Source: Right to Counsel in Contested Adoption

Right to Counsel in Contested Adoption

L.A., a poor woman, turned to the Children Home Society of New Jersey (CHS) for help with her young special needs daughter. CHS temporarily placed her daughter with foster parents.  Because she feared  she would not be able to financially support her daughter’s special needs, L.A. initially was inclined to put her daughter up for adoption.  She ultimately changed her mind. Nevertheless, CHS  decided that the girl would be better off with her foster parents and, therefore,  moved to terminate L.A.’s  parental rights.  After a two day trial in which she represented herself L.A.’s parental rights were terminated.  No abuse or abandonment was alleged. On appeal, L.A. challenged the trial court’s determination, arguing, among other things, that in an action to terminate parental rights an indigent respondent has a right to appointed counsel regardless of whether the action was instituted by the State or a private agency.

It is well established that if the State moves to terminate parental rights that parent has a right to appointed counsel.  Until now  if the contested adoption is moved by a private adoption agency the parent has had no right to such representation.   But in October the Appellate Division of the Superior Court declared those days at an end.  In Matter of Adoption of J.E.V. the Appellate Division concluded:

After the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights. Such termination “sever[s] the parent-child bond, … is irretrievably destructive of the most fundamental family relationship,” and “the risk of error … is considerable… “[A] natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.”

Judge Ellen Koblitz, in a passionate eloquent opinion, concluded for the panel that “L.A., when facing a consequence of such magnitude, imposed by the action of a State-licensed agency, was entitled to appointed counsel.”  That conclusion is eminently correct and past-due.  When a child is taken from a parent by state action it should make no difference whether the initiative is by a public entity or a private adoption agency like CHS.  The court’s action provides the state action warranting the protection of counsel for the natural parent.

But the remedy is problematic.  The adoptive parents’ assert that the court lacked statutory authority and that the birth mother waived her right to counsel.  L.A. adhered to the principle stand fast if you stand well and opposed the cert petition.  The state Supreme Court granted certification on December 17, 2015 framing the question as “In a private adoption matter, does an indigent parent facing termination of parental rights under New Jersey’s Adoption Act have a right to appointed counsel?”.

The Supreme Court set a peremptory briefing schedule – perhaps assign that  the right to appointed counsel will be upheld: but who should that be?  The Appellate Division panel had referred the matter to the Administrative Director of the Court, urging consultation with the Conference of Presiding Family Judges.  “The Madden [v. DelRan] list may have to be utilized to provide counsel” the opinion suggests.  That decision held that private lawyers have a duty to represent people for free where the Public Defender is not required to do so.  But the “Madden list”– an alphabetized list of attorneys prepared by Assignment Judges in each vicinage pursuant to which lawyers are assigned to represent indigent defendants on a pro bono basis —  is insufficient.    Free labor imposed by court directive – even on those with a lawyer’s professional duty – will often be no match for the experience and resources of the statewide Office of the Public Defender, which represents parents  whose children have been removed based on allegations of abuse and neglect (Office of Parental Representation), the children who have been removed (Office of Law Guardian), and individuals involuntarily committed to State psychiatric facilities (Office of Mental Health Advocacy).

The Appellate Division asked the Public Defender to represent L.A. but the PD refused, saying it lacked statutory authorization to act in private agency actions.  Private counsel was then appointed.  But as the panel observes “(o)ur Supreme Court has held that indigent parents in private adoption matters are entitled to free transcripts, provided by the plaintiffs, or if plaintiffs are financially unable to provide the transcript, then by the Office of the Public Defender (OPD).    In re Adoption of a Child by J.D.S., 176N.J. 154  (2003).”

The New Jersey State Bar Association has decided to intervene as amicus curiae.  It is to be hoped that the Association will urge  that the principle of the right to counsel should be extended by the court to authorize the Public Defender to represent the indigent parent in privately initiated contested adoption matters.  The children and the parents are owed equal and competent representation consideration.  Regardless of who initiates the proceeding it remains the State which terminates completely the rights of the parent and severs the child from mother and father.  Such a view of state action prevailed in Edmonson v. Leesville Concrete, a 1991 case in which the United States Supreme Court held that empaneling a jury was a state function which subjected a lawyer’s peremptory jury challenge to the 14th Amendment principle of equal protection of the law.

– George Conk

Florida Court of Appeal upholds lawyer’s $350,000.00 judgment against client who posted false online reviews/comments | Lawyer Ethics Alert Blogs

George ConkLeave a comment

Source: OTHERWISE: Florida Court of Appeal upholds lawyer’s $350,000.00 judgment against client who posted false online reviews/comments | Lawyer Ethics Alert Blogs

Libel is a ancient cause of action.  The ease of communication on the internet allows a lie to spread farther and faster than ever.  But the Communications Decency Act 47 USC 230 (c) immunizes internet service providers and others who post defamatory statements.  But it has not abolished the state tort actions against the speaker or writer.

Abraham Lincoln famously said that a lawyer’s stock in trade is his time and advice.  But the most important asset may be reputation.  So the need to respond to sharp defamatory words in online reviews on websites like Yelp arises often.  But the confidentiality command of RPC 1.6 drastically limits the ability to do so.  The New York State Bar Association in Ethics Opinion 1032 (2014) opined that such an “informal” statement that a lawyer did not adequately communicate and that his services were lacking did not trigger the self defense right of  RPC 1.6 (b)(5) which permits disclosure of confidences “to establish a claim or defense”.

Similarly Pennsylvania Bar Association Formal Opinion 2014-300 opined that a lawyer may respond in only a “general” way to a negative review, being careful not to reveal any confidential information.  Similarly the  Bar Association of San Francisco in Opinion 2014-1 was of the view that

While the online review could have an impact on the attorney’s reputation,
absent a consent or waiver, disclosure of otherwise confidential information is not ethically permitted in California unless there is a formal complaint by the client, or an inquiry from a disciplinary authority based on a complaint by the client. Even in situations where disclosure is permitted, disclosure should occur only in the context of the formal proceeding or inquiry, and should be narrowly tailored to the issues raised by the former client.

In my own experience as a member of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics I was voted down decisively.  I argued that the lawyer had been defamed by the client who wrote an online assertion that she had been abandoned.  That I felt entitled the lawyer to respond publicly that  the retainer agreement limited the lawyer’s undertaking  to research and investigation.  In the view of the Committee that would be a breach of the duty of confidentiality.

But a lawyer can reveal such information if she takes the step of filing a defamation action.  Florida lawyer Anne Marie Giustibelli took that step against a client who accused her of lying about fees.  Because Giustibelli was trying to “establish a claim…in a controversy between the lawyer and the client” she was allowed to disclose confidences.  But filing defamation actions and seeking punitive damages is such a blunt instrument that it is likely to be rarely employed.  Perhaps a rule that a defamatory comment opens the door to rebuttal does have merit?  – gwc

 

Florida Fourth District Court of Appeal upholds lawyer’s $350,000.00 judgment against client who posted false online reviews/comments | Lawyer Ethics Alert Blogs

Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Fourth District Court of Appeal upholding a judgment in a lawsuit filed by a lawyer alleging libel for false online comments..  The case is Ann-Marie Giustibelli, P.A. et al v. Copia Blake and Peter Birzon, Case No. 4D14-3231 (Florida 4th DCA, January 6, 2016).

Semester Resources

Ellen MurphyLeave a comment

Welcome to 2016 and a new year of PR.  For those of you teaching this semester, remember the materials available (syllabii, ppt templates, etc) under the Teaching Resources tab of our website.

We can also provide you with the questions and answers/explanations for the textbook multiple choice questions.  These can be delivered directly to your TWEN site or in other formats for incorporation in your school’s Learning Management System.

Finally, if you want to make electronic copy only purchases available to your students, you may do so using this link.

We welcome your feedback!  murphyme@wfu.edu

100 Women Lawyers Tell Their Abortion Experiences in Supreme Court Brief

George ConkLeave a comment

Source: 100 Women Lawyers Tell Their Abortion Experiences in Supreme Court Brief

As lawyers we represent the interests of others, subordinating our own to the needs of our clients, and others.  So we rarely cite our own experience.   113 women lawyers have breached that wall in a friend of the court brief. The right to terminate a pregnancy has been affirmed so often that opponents of abortion have turned to indirect methods – to burden the right so much that it cannot be exercised.  One such method is before the Supreme Court now.  In Whole Woman’s Health v. Texas  the questions before the court center on a Texas law that so burdens clinics who perform abortions that the ability to make that choice will be significantly reduced without any gain in women’s health.

The prospects of overturning that law in the Supreme Court are slim.  The “police power” of the states is subject only to “rational basis” review …and formally increasing the qualifications to perform abortions is designed to meet that very low bar.

Nor is the argument of the 113 women likely to persuade them – because their rational choices will not count for much against the high moral ground claimed by opponents of abortion rights.  It is not necessary to log in to Mirror of Justice or First Things, the voices of conservative Catholic lawyers to know what they will say about disrespect for life.  But these 113 women – lawyers, law professors, and judges, stepping out of the shadows, illustrate a basic fact: one of three women in America will choose to terminate a pregnancy.  One can lament it as a plague but there is no denying it.  Opponents of abortion rights must confront the fact that millions of women not only believe they have that right – but exercise it.

Abortion opponents rarely say what measures they would support if they had their way.  Criminalizing the medical procedure is the obvious one.  But no one dares to say they would criminalize women who choose to obtain abortions.  The women lawyers brief confronts the Supreme Court with the fact that the women whose lives they are judging are their peers and colleagues in the bar, on law school faculties, and on the bench.  – gwc

IN THE SUPREME COURT OF THE UNITED STATES

WHOLE WOMAN’S HEALTH, et al., Petitioners, v. KIRK COLE, M.D., COMMISSIONER OF THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al., Respondents.

 

BRIEF OF JANICE MACAVOY,JANIE SCHULMAN, ANDOVER 110 OTHER WOMEN IN THELEGAL PROFESSION WHO HAVE EXERCISEDTHEIR CONSTITUTIONAL RIGHT TO ANABORTION AS AMICI CURIAEIN SUPPORT OF PETITIONERS 

Amici obtained their abortions at different ages and life stages, under a variety of circumstances, and for a range of reasons both medical and personal, but they are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions. They are 113 individual women but they represent many more of the past, present, and future members of the profession who have, like one in three American women, terminated a pregnancy in their lifetimes. Guttmacher Institute, Fact Sheet: Induced Abortion in the United States (July 2014),

SUMMARY OF ARGUMENT

“To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion.”

Email received from an Amicus, an appellate court attorney, December 18, 2015. 

In reaffirming a woman’s right to safe and legal abortion access in Casey, this Court observed that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 505 U.S. at 856. The statutory provisions at issue in this case would dramatically restrict women’s ability to exercise their right to safe and legal abortions—and thus their ability to participate equally in the life of the nation—not only in Texas, but in any other state that has or will adopt similar laws. The right to terminate a pregnancy, to autonomy in decision-making and bodily integrity, should be a right in fact and not just in theory.

Kansas Supreme Court Stands Up to Legislature // Brennan Center

George ConkLeave a comment

Source: Kansas Supreme Court Stands Up to Legislature // Brennan Center

The Kansas Supreme Court has been in a long struggle with the Legislature to achieve equitable funding for public schools.  The State has twice moved to directly interfere with the Courts.  In the first instance it assigned jurisdiction over school funding cases to a single three judge panel.  The legislators have continued to defy school funding mandates.

Most recently the legislators enacted a change in how the Chief Justice is selected by the Court.  The legislators provided that if that law was declared unconstitutional the judiciary’s funding would be stricken.  The Court has called that bluff, the Brennan Center reports

JUDICIAL INDEPENDENCE


Kansas Supreme Court Finds Administrative Law Unconstitutional

On December 23, the Kansas Supreme Court found that a 2014 state law changing the selection mechanism for chief district judges was unconstitutional, writes Jonathan Shorman for The Topeka Capital-Journal. 

 
Plaintiff Chief Judge Larry Solomon, whose legal representation includes the Brennan Center for Justice, argued that the law was an unconstitutional violation of the separation-of-powers doctrine. The majority opinion stated that “the means of assigning positions responsible to the Supreme Court and charged with effectuating Supreme Court policy must be in the hands of the Supreme Court, not the legislature.” They also described the legislature as “assert[ing] significant control over a constitutionally established essential power of the Supreme Court” by enacting the law. 
 
A separate law passed in 2015, HB 2005, “strikes court funding if provisions of the 2014 law are struck down, which the Supreme Court did with [its] ruling.” As a result, the Supreme Court’s decision could “bring the state closer to a crisis over court funding.” However one of Judge Solomon’s attorneys, Pedro Irigonegaray, said that “an injunction against defunding the courts will remain in place until at least mid-March.” The Brennan Center and co-counsel also represent Kansas judges challenging the constitutionality of HB 2005.