From NPR News:
The U.S. Supreme Court hears arguments [today] testing whether a Pennsylvania Supreme Court justice violated the U.S. Constitution when he ruled in a death penalty case that he had been involved with as a prosecutor.
At issue is whether then-Chief Justice Ronald Castille, by refusing to recuse himself, denied the defendant, Terrance Williams, a fair hearing.
It’s always a good idea to remind your students to be careful if they should ever take on the responsibility of managing a law firm, especially in times of financial bust. If you have been following the Dewey & LeBoeuf criminal trial, you know that the jury deadlocked in October of last year on dozens of charges against Steven H. Davis, the former chairman of Dewey, and two other former executives of the law firm, Stephen DiCarmine and Joel Sanders. The three men were accused of being the architects of an accounting fraud that enabled Dewey to defraud its lenders and creditors during much of the financial crisis.
In January of this year, Manhattan prosecutors reached a deferred prosecution agreement with Steven H. Davis. The agreement runs for five years and prohibits Davis from practicing law in New York during that period.
In February, prosecutors reached a deferred prosecution agreement with Zachary Warren, one of the four original defendants, just weeks before he was supposed to go on trial in the New York State Supreme Court in Manhattan. Notably, Warren was not a lawyer when he worked as the client relations manager at Dewey & Leboeuf. After leaving Dewey, he went on to graduate from Georgetown Law Center and clerked for a federal judge. He plans on working at Williams & Connolly in the fall. The agreement requires Warren to perform 350 hours of community service as part of a one year agreement.
The Manhattan prosecutors are planning to retry the case against DiCarmine and Sanders.
Articles about the agreements reached with Davis and Warren can be found here and here.
I’ve only seen one of the films nominated for an Oscar this season—Spotlight—and it has haunted me. (Fair warning: spoilers ahead, though the film is well worth viewing even knowing how it unfolds.)
This gripping film recounts the true story of Boston Globe editor Marty Baron’s decision to assign the newspaper’s “Spotlight” team of investigative reporters to examine sex abuse allegations against Catholic priest John Geoghan. The reporters’ interviews of victims and efforts to unseal sensitive court documents eventually led them to what we now know was an extensive cover-up of abuse by the Roman Catholic Church over many years involving not just Geoghan but thousands of priests. (The Globe won the 2003 Pulitzer Prize for Public Service based upon this reporting.) The film features brilliant acting by Michael Keaton as editor Walter “Robby” Robinson, Rachel McAdams as reporter Sacha Pfeiffer, and Mark Ruffalo as reporter Michael Rezendes, among others. Most intriguing to me, however, was the role of lawyers in the film, including Erik MacLeish, who represented numerous abuse victims in securing private settlements, and Jim Sullivan, who defended priests accused of abuse and was a long-time friend of Robby Robinson.
The film raises significant questions about legal ethics and personal morality. How do we reconcile the sanctity of confidentiality and attorney-client privilege against the moral dilemma of knowledge about a client’s outrageous acts? It is one thing to maintain confidentiality in representing someone accused of an isolated crime that occurred in the past, but what if a lawyer has information that could prevent hideous child abuse from occurring in the future?
Robinson repeatedly asks Sullivan to become a confidential source by confirming the names of child molesting priests as the Globe’s list of suspects grows. Sullivan struggles—the film captures this beautifully and painfully—then finally relents, confirming dozens of names on the Globe’s list.
MacLeish obtains settlements for hundreds of victims, all subject to strict confidentiality agreements. His work is critiqued by the reporters as essentially being a cottage industry at the expense of future victims, because the settlements prevent the abuse from becoming public. MacLeish maintains that the short statute of limitations and statutory cap on recovery made settlement the best possible outcome for his clients. Perhaps that is true for the individuals he represented; but what about the children who continued to be abused? Does settlement in a situation like this achieve justice or undermine it? (Read Owen Fiss’s Against Settlement for more on that topic.) Here again, MacLeish faces the moral dilemma of whether or not to reveal confidential information. We learn late in the film that he sent information to the Globe many years before the Spotlight investigation occurred; the Globe failed to follow up on it.
What is the role of lawyers in a massive abuse scandal of this nature? Should there be an exception to client confidentiality protections or attorney-client privilege? Does Model Rule 1.6’s exception for breaching confidentiality to prevent an act that is reasonably certain to result in substantial bodily harm apply here?
This article from the Globe’s Spotlight team reporting on the abuse scandal in 2002 offers some answers while at the same time raising even more questions:
“Plaintiff lawyers settle cases confidentially all the time,” said Paul J. Martinek, editor and publisher of Lawyers Weekly USA, a professional journal. “But if you know your client’s been raped by a priest and you settle the case confidentially, knowing that the priest could go out and do it again, your hands aren’t entirely clean.”
Middlesex District Attorney Martha Coakley has also had harsh words for some attorneys who represent victims of priests, saying in an interview that “the plaintiff lawyers bear some responsibility” for keeping abuse by priests out of the public eye by settling cases confidentially.
Looking back, silence has become hard to take
Boston attorney Laurence E. Hardoon, who took on his first clergy sex abuse client in 1992 and has since handled between 20 and 30 such cases, reflected on his role in this ugly chapter with a twinge of regret.
“If we had any inkling whatsoever of the magnitude of harm that was out there, maybe we, as a joint group of plaintiff lawyers, would have tried to encourage our clients to be outspoken in many cases,” said Hardoon, who formerly served as a Middlesex assistant district attorney. “It’s hard not to look back and say the greater good would really have been served by the lack of secrecy earlier on.”
Jeffrey A. Newman, of the Boston firm Newman & Ponsetto, has represented scores of alleged clergy sex abuse victims, and voiced a public mea culpa over his involvement in a handful of earlier cases that he settled secretly.
“Had I been more astute, I probably could have recognized the problems better,” Newman said. “I just never took the time to examine them closely enough.”
But MacLeish, Hardoon, Newman, and other plaintiff lawyers also say they were hamstrung by restrictive state laws that limited their ability to press charges against alleged offenders. They also blame legislators for failing, until recently, to require church officials to report suspected abuse. They and others have also pointed a finger at judges, prosecutors, and the press for being too deferential to the church over a long period of time.
They argue they were torn between their obligation to zealously represent their damaged clients, few of whom wanted their personal lives exposed in a courtroom, and the church’s reluctance to settle cases without confidentiality clauses. As a result, some legal experts say, secrecy was often the only option.
“If you can get $100,000 or $500,000 for your client and the price of that is silence, the lawyer’s sort of in a bind,” said Andrew L. Kaufman, who teaches ethics at Harvard Law School and sits on ethics committees for the Massachusetts Bar Association and Supreme Judicial Court.
“Ultimately, it’s the client who instructs the lawyer on whether to accept the offer,” Kaufman said. “And as long as a confidential settlement is lawful, sometimes a lawyer’s got no choice but to accept it.”
(Cross-posted at the Legal Ethics Forum)
Source: A Responsibility I Take Seriously : SCOTUSblog
A Responsibility I Take Seriously : SCOTUSblog
by Barack Obama
The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.
It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.
Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.
First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.
Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.
But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.
A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.
– See more HERE
Source: New Social Media Opinions: West Virginia and Colorado | Legal Ethics in Motion
from the Professional Responsiblity Program at U of Miami Law School:
New Social Media Opinions: West Virginia and Colorado | Legal Ethics in Motion
by Professional Responsibility and Ethics Program (PREP) //University of Miami School of Law
Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.
In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships.
Source: When the Public Defender Says, ‘I Can’t Help’ – The New York Times
Louisiana has the highest incarceration rate in the U.S. Cardozo Law School Prof. Ellen Yaroshefsky testified that it runs not a justice system but a “processing system”. – gwc
When the Public Defender Says, ‘I Can’t Help’ – The New York Times
by Derwyn Bunton //Chief Defender for Orleans Parish / Louisiana
New Orleans — ON an ordinary day, the Criminal District Court here begins with a parade of handcuffed and shackled defendants being led out from cages behind the judge’s bench by sheriff’s deputies. They are clad in orange jumpsuits and are almost exclusively African-American men. They rattle and shuffle their way onto benches and into the empty jury box, waiting for the judge.
When their case is called, a lawyer from the public defender’s office will rise and say: “Your Honor, we do not have a lawyer for this person at this time.”
Eight-five percent of these defendants are unable to afford their own lawyer and will need a public defender to represent them. But in New Orleans, where I am in charge of the public defender’s office, we simply don’t have enough lawyers to handle the caseload. Last month, we began refusing new cases.
In a state with one of the nation’s highest poverty rates, the system to defend the poor is broken.
To understand why, look at the other people in the courtroom sitting on benches set aside for the audience. Most of these people aren’t there to watch the proceedings. Many were subpoenaed for failing to pay fines or fees for minor offenses and had to take time from work to appear in court or be charged with contempt. Those fines and fees pay for two-thirds of the Louisiana public defender system. The rest comes from the state.
It is not an exaggeration to say that fines from traffic offenses, which, in Louisiana, can result in jail time, play a big part in determining whether one of those men in the orange jumpsuits receives an adequate defense required by the Sixth Amendment to the Constitution.
Poor people must pay $40 to apply for representation, and an additional $45 if they plead guilty or are found guilty. No other states lean so heavily on fines and fees paid mostly by the poor. And there is a reason for that. The system isn’t working.
Louisiana spends nearly $3.5 billion a year to investigate, arrest, prosecute, adjudicate and incarcerate its citizens. Less than 2 percent of that is spent on legal representation for the poor.
It is little wonder that Louisiana has the nation’s highest rates of incarceration and exoneration for wrongful convictions.
In Formal Opinion 473 (Feb. 17, 2016), the ABA provides new guidance to lawyers receiving subpoenas for client documents or information. The opinion states that whenever a lawyer receives a subpoena or any other compulsory process for documents or information relating to the representation of a client, several obligations are implicated. First, the lawyer must consult with the the client, if the client is available. Next, unless the client instructs otherwise, the lawyer must assert all reasonable claims against disclosure and seek to limit the scope of any disclosure. Next, if ordered to produce any information, the lawyer should consult with the client on whether to appeal the ruling. Finally, if the client and the lawyer disagree on how to proceed, the lawyer should consider whether to withdraw from the representation pursuant to Rule 1.16.
The new opinion goes into some detail to explain what the lawyer should do if the client is unavailable, and to the duty to take steps to protect client confidentiality. The opinion should be a very helpful resource to any lawyer facing attempts to pierce client confidentiality.
The new opinion is also a useful addition to Formal Opinion 10-456 (July 14, 2010), which addressed the disclosure of client information to a prosecutor when a lawyer’s former client brings an ineffective assistance of counsel claim. Formal Opinion 10-456 makes clear that a lawyer may only disclose confidential information that the lawyer believes is reasonably necessary for the lawyer’s self-defense.
Bruce Green and Ellen Yaroshefsky recently posted a new article on SSRN, Prosecutorial Accountability 2.0. They identify several rhetorical and regulatory shifts that they claim are leading to an era of new prosecutorial accountability. In their carefully crafted article, they argue that information technology is the main driver behind this shift to hold prosecutors accountable for their actions. They claim that the pendulum long fixed on courts and the media presuming that prosecutors could do no wrong has swung to a more skeptical position. Let’s hope they are right. Anyone interested in the criminal justice system should read this article.
Richard Emery, a name partner in a well-known New York City law firm, is also Chairman of New York City’s Civilian Complaint Review Board, which investigates complaints against police officers. The New York Daily News reports that the City’s Conflict of Interest Board permitted him to “keep his name on the firm’s shingle, and [granted him] a ‘waiver’ allowing his firm to represent plaintiffs in lawsuits against the City.” A spokesman for the CCRB added that “Mr. Emery recuses himself from any matters in which the firm represents a party associated with the CCRB,” but the Daily News reports that “[n]either the Conflicts Board, nor Emery, would provide a copy of the waiver.” Although the Board may have been applying government ethics law, Emery’s recusal from matters involving his firm would appear to satisfy Rule 1.11 (d). Similarly, his law firm’s representation of plaintiffs who formerly had matters before the CCRB would appear to satisfy Rule 1.11 (a)(2) so long as “the appropriate government agency gives its informed consent, confirmed in writing,” as happened here. Note that the language of the Rule 1.11 refers to former government officers but the comment expressly includes current government officers with regard to former matters. In addition, even without consent, Rule 1.11(b) would permit the representation so long as Emery is timely screened, and the agency receives timely notice.
Source: Judicial supremacy and professional responsibility // Wasserman // Prawfs Blawg
| James Obergefell and Chris Geidner |
Former Scalia clerk and Catholic conservative Kevin Walsh at University of Richmond has acted to support his former mentor by explaining that there is no defiance of law in comparing Obergefell to Dred Scott v. Sanford, that the judiciary is supreme only in its own “department”, leaving other departments of government free to pursue their own visions of the Constitution. Judicial supremacy – the product of Marbury v. Madison as now understood – has long invited celebration and vilification, depending usually on whose oxen have been gored.
Prof. Howard Wasserman who is not in the same ideological camp has embraced the “departmentalism” notion. In my view signing on to Walsh’s label is hazardous. Of course every branch of the government participates in the development of thinking within or about the framework of the constitution. But in practice the current slogan as inspired by George – who denounces Obergefell as illegitimate as was Dred Scott – is a dangerous development.
Those like Chief Justice John Roberts who in dissent denounced Obergefell (“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision”) are playing a risky game. The majority decision giving the 2000 presidential election to George W. Bush is subject to the same attack as Roberts makes now. Judicial humility did not prevent Roberts from striking Section 5 of the Voting Rights Act; nor from striking the voluntary racial integration plans of the Seattle public schools. Such decisions cannot be resolved by neutral principles. They require prudential judgments; judiciousness rather than “constitutional resistance” is the better watchword.
PrawfsBlawg: Judicial supremacy and professional responsibility
by Howard Wasserman
The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.
One of the challenges to the model of departmentalism I have been advocating (what Richmond’s Kevin Walsh calls “judicial departmentalism”) is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS’s interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is “emphatically the province and duty,” etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.
On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.
At yesterday’s Midyear Meeting, the ABA House of Delegates adopted Resolution 105, Model Regulatory Objectives for the Provision of Legal Services. This resolution is a product of the ABA Commission on the Future of Legal Services. (Disclaimer, I am a Reporter for the Commission.) Coverage from the ABA is here, the ABA Journal is here, and the American Lawyer is here. For information on the purpose of regulatory objectives generally, see Professional Responsibility: A Contemporary Approach co-author Laurel Terry’s seminal work on this topic, and for more background on the development of the ABA Model Regulatory Objectives specifically, see the Commission’s Report.
Here is the resolution in full:
RESOLUTION
RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016.
ABA Model Regulatory Objectives for the Provision of Legal Services
A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
E. Delivery of affordable and accessible legal services
F. Efficient, competent, and ethical delivery of legal services
G. Protection of privileged and confidential information
H. Independence of professional judgment
I. Accessible civil remedies for negligence and breach of other duties owed, disciplinary sanctions for misconduct, and advancement of appropriate preventive or wellness programs
J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system
FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.
FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.
(Cross-posted at the Legal Ethics Forum.)
On Feb. 8, 2016, the ABA House of Delegates adopted a resolution that “urges the bar admission authorities in each state and territory to adopt expeditiously the Uniform Bar Examination.”
This is relevant when teaching Chapter 2 (and also for our students’ futures.) For more information, see the NCBE’s UBE webpage.
On Monday, Feb. 8, 2016, the ABA House of Delegates adopted a revised and amended version of the Regulatory Objectives Resolution. The original proposal is here. The language that was added stated:
FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.
In my view, the resolution always was about encouraging jurisdictions to think about “why” they regulate and what they are trying to accomplish, not “what is regulated.” The Resolution “urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess [regulatory issues].” I hope that each U.S. jurisdiction will now decide to adopt its own regulatory objectives (and will think about whether it wants to use the ABA’s model objectives verbatim or adapt a variation such as those recommended here, those set forth in this appendix, or those adopted in 2014 in Nova Scotia.)
Judge Jesse Furman of the Southern District of New York recently refused to permit a plaintiff in a civil rights action from substituting a new lawyer on the ground that the lawyer was barred under Rule 1.11. Furman found that lawyer “participated personally and substantially as a public officer” (Rule 1.11) in investigating plaintiff’s bias complaints when lawyer was Senior Director for Equal Employment Opportunity — not a lawyer position — at plaintiff’s employer agency.
From the Raleigh News & Observer:
Ronald Newton, a candidate for the Democratic nomination for lieutenant governor, represents himself as a lawyer even though he acknowledges he has never taken the bar exam and is not licensed to practice law anywhere.
The distinction, according to Newton, who runs a tax firm in Durham, is that anyone who graduates from law school is a “lawyer,” and those who pass the bar and are licensed are “attorneys.”
“I’m not a tax attorney; I’m a tax lawyer,” Newton said this week. “There’s a difference. I think this is a common error people make.”
The error is his, according to the N.C. State Bar, which regulates the practice of law.
The terms are used interchangeably, for purposes of regulation, according to David Johnson, who is in the State Bar section that investigates the unauthorized practice of law.
“Simply graduating from law school is insufficient to be called a lawyer or an attorney,” Johnson said in an email.
If you haven’t yet watched 60 Minutes’ recent episode on Anonymous, Inc., you might consider using in class it to spark conversation about Model Rule 1.2(d)’s requirement that:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
The episode features interviews with 16 attorneys by a fictitious client seeking help with money laundering. Interestingly, only one attorney flatly refused to engage. Among the rest, we see fascinating clips of their conversations as they weigh whether or not to take on the client. The second half of the show features legal ethics expert Bill Simon discussing the attorneys’ behavior.
Here’s a brief synopsis from the 60 Minutes website:
If you like crime dramas and movies with international intrigue, then you probably have a basic understanding of money laundering. It’s how dictators, drug dealers, corrupt politicians, and other crooks avoid getting caught by transforming their ill-gotten gains into assets that appear to be legitimate.
They do it by moving the dirty money through a maze of dummy corporations and offshore bank accounts that conceal their identity and the source of the funds.
And most of it would never happen without the help — witting or unwitting — of lawyers, accountants and incorporators; the people who actually create these anonymous shell companies and help move the money. In fact, the U.S. has become one of the most popular places in the world to do it.
More coverage below:
Full report from Global Witness, the group conducting the investigation, is here.
ABA Journal, Group goes undercover at 13 law firms to show how US laws facilitate anonymous investment
NY Times, Report describes lawyers’ advice on moving suspect funds
ABA President Paulette Brown responds to 60 Minutes segment here.
LT addition: For an article on US legal profession efforts to combat money laundering, see here and here for related slides.
Source: D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations
The United States District Court for the District of Columbia has released aproposed rule which would codify the government’s discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors and defines for the first time what constitutes “favorable information” under the U.S. Supreme Court’s landmark 1963 decision in Brady v. Maryland the Court there declared that prosecutors have a constitutional obligation to provide the defense with “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” The failure by a prosecutor to disclose appropriate information is often referred to as a “Brady violation.”
Let’s revisit a 2015 Indiana State Bar Legal Ethics Committee Opinion (see our previous post here). Contemporary Professional Responsibility co-author Peter Joy explains in the ABA Journal this month how a conflict between a state statute and a binding Rule of Professional Conduct may create risk for lawyers. The Opinion covers an Indiana statute that requires immediate reporting by those “who have reason to believe” that a child is an abuse or neglect victim; lawyers are not exempt from reporting. The ethics opinion considers how this can be squared with Rule 1.6, finding, as Professor Joy explains, “that a lawyer only has to follow the law and report child abuse or neglect necessary ‘to prevent reasonably certain death or substantial bodily harm,’ which is the standard in Indiana’s confidentiality rule for permissive reporting of a client’s confidence.”
This is a great teaching example of how other rules governing lawyers – beyond the Rules of Professional Conduct – may create confusion, or even a conflict with the binding RPC. A good example for Chapters 1 or 4.
Professional Responsibility: A Contemporary Approach 