Lisa Rickard and Anthony Sebok on the Ethics of Investing in Another’s Lawsuit

From the New York Times Room for Debate:

The disclosure that Peter Thiel, co-founder of PayPal, spent about $10 million to help the wrestler Hulk Hogan sue Gawker Media apparently because a Gawker blog outed him as gay years ago revealed for many the lucrative practice of investors paying for litigation in which they are not involved.

While Thiel’s motives were not profit driven, most investors seek a cut of any final judgment or settlement. Should third parties be allowed to invest in lawsuits or does that unduly influence them?

Lisa Rickard, president of the United States Chamber of Commerce Institute for Legal Reform, says no – This is Casino Litigation Where We All Lose

Anthony Sebok, professor of law at Benjamin N. Cardozo Law School, says yes – Third-Party Litigation Finance Promotes Justice and Deters Wrongdoing

 

ATTORNEY ADVERTISING OF AWARDS, HONORS, AND ACCOLADES THAT COMPARE A LAWYER’S SERVICES To OTHER LA WYERS’ SERVICESREMINDER FROM THE COMMITTEE ON ATTORNEY ADVERTISING – NJ

Source: ATTORNEY ADVERTISING OF AWARDS, HONORS, AND ACCOLADES THAT COMPARE A LAWYER’S SERVICES To OTHER LA WYERS’ SERVICESREMINDER FROM THE COMMITTEE ON ATTORNEY ADVERTISING – NJ

Newspapers and magazines are eager to draw subscribers and advertisers.  So there are lots “best of”lists.  The New Jersey Supreme Court’s Attorney Advertising Committee has issued a detailed caution about the use of such labels as Super Lawyers, Rising Stars, etc. The Committee has disciplinary authority so its advice should be heeded.  – gwc

NJ Rule Change Would Protect Lawyers Who Represent Pot Growers | New Jersey Law Journal

Source: NJ Rule Change Would Protect Lawyers Who Represent Pot Growers | New Jersey Law Journal

As a member of the Advisory Committee on Professional Ethics I cannot comment- other than to say please do heed the Supreme Court’s request for comments.  – GWC
Supreme Court of New Jersey
Proposed Amendment to RPC 1.2 Regarding Medical Marijuana Law — The Supreme Court requests comments on the proposal by theAdvisory Committee on Professional Ethics for amendments to RPC 1.2 regarding representing clients with regard to New Jersey’s medical marijuana laws. The comment period will close on June 20, 2016. Click here to read the notice and the ACPE’s proposed amendments to RPC 1.2

NJ Rule Change Would Protect Lawyers Who Represent Pot Growers | New Jersey Law Journal

Inside (Inhouse) Lawyers: Friends or Gatekeepers?

Those of you teaching Chapter 6—The Lawyer’s Duties to the Legal System, the Profession, and Nonclients—might be interested in an article of mine just published by the Fordham Law Review for its Lawyering in the Regulatory State Symposium.  In the paper, using the GM ignition switch scandal as a point of departure, I critique the common assertion that our legal system is best served if the corporate in-house lawyer conducts his/her relationships with senior corporate managers according to the “lawyer as friend” model. I argue that there are numerous problems with the model, not the least of which is the invariably (and perhaps intentionally) vague way in which the model is invoked.  Those who invoke the “lawyer as friend” model repeatedly assert that the senior corporate manager needs to be able to repose “trust and confidence” in the inhouse lawyer. Unfortunately, they never explain: trust and confidence in what?

As a matter of professional responsibility and fiduciary obligation, the lawyer cannot reassure the manager that his communication will remain confidential or that the manager will be shielded from adverse consequences. If the corporate senior manager is engaged in material wrongdoing that may harm the corporate entity, that manager will usually not be entitled to those assurances.  As William Simon has explained, the authority to invoke or waive the organization’s confidentiality rights usually belongs to the organizational agents different from those who made the confidential communications. Because the lawyer may be required to testify against the manager in a court of law, it would be entirely inappropriate for the lawyer to reassure her colleague of her continuing loyalty or confidentiality.  The lawyer’s duty of confidentiality will not block disclosure within the organization, and it will not prevent the organization from divulging information outside of the corporation, no matter how harmful internal or external disclosure is to the manager. Indeed, the only thing that the lawyer can properly promise the manager is that she will listen carefully and not rush to judgment, which is the behavior that anyone would reasonably expect of a competent professional (irrespective of any preexisting friendship). To suggest that lawyers should invite the manager’s trust and confidence and then—if the lawyer encounters evidence of material misconduct—turn around and report that manager to higher-ups basically advocates a bait and switch model. This “bait and switch” does not sound like friendship, which is precisely why the “lawyer as friend” analogy should be abandoned.

To be sure, in the best possible world, the senior corporate manager backs down from his illicit plan. This good result may be reached through some form of moral dialogue that legal scholars are right to recommend. What many folks ignore, however, is the sobering reality that persuasion does not always work. Not all lawyers will be skillful in the art of moral suasion, and—frankly—most law schools do not train students in moral suasion. Also, sophisticated senior managers, who find themselves in desperate enough situations to be considering wrongdoing in the first place, may not be receptive to the lawyer’s (perhaps feeble) attempts at moral suasion.

Perhaps those invoking the “lawyer as friend” model are merely saying lawyers should be “friendly”?  Unfortunately, that commits the fallacy of confusing “friend” with “friendliness.”

If you’d like to read the whole article, it can be downloaded from SSRN here:

The entire issue of the Fordham Law Review Lawyering in the Regulatory State Symposium can be found here.

 

Teaching PR Online This Summer or Fall?

Or thinking about it?
Below is a piece I originally did for the Huffington Post Tech Blog, Dispelling Myths About Online Learning.  As always, I’m happy to discuss my experiences teaching professional responsibility online at Wake Forest.  Feel free to contact me!  murphyme@wfu.edu

Despite the growing number of virtual students, many academics still believe outcomes for online education are inferior to those of face-to-face instruction, according to Babson Survey Research Group’s most recent annual report, Online Report Card – Tracking Online Education in the United States.

In my experience, the opposite is true.

Many who doubt the effectiveness of virtual classrooms have not been exposed to thoughtfully designed, rigorous courses that use technology purposefully to engage students and achieve better learning outcomes. Following are some of the most common misconceptions about online learning.

Myth 1:  Online learning denotes a single model.

There are many, often contradictory, definitions of online learning.  When you read, think or talk about online learning, it is important to be specific. While there are endless possibilities, with new ones developing each day, there are two fundamental categories of which you should be aware: asynchronous and synchronous. These terms distinguish when the interactions between and among students and teachers occur.

In a fully asynchronous classroom, students work independently, and to some extent on their own schedule, although rigorous programs have regularly scheduled due dates to allow for meaningful professor feedback on formative assessments. Fully synchronous classes are online interactions that occur simultaneously between and among students and professors.  These may include real time video, and often all students can see the teacher, and vice versa.

Online courses may have both asynchronous and synchronous components; in addition, traditional classrooms may include components of online learning. We call these blended or hybrid courses; the flipped classroom is one example.

Myth 2:  It is impossible to connect in an online classroom.

Connection is important to promote student engagement, and therefore deeper learning and outcome achievement. Many who have no experience with online learning, or who have experience with poor quality online classrooms, assume that the physical distance necessarily creates an inability to connect among professors and students. In my experience, the opposite is true. Not only are students and professors shocked at how connected they are in a virtual course, but in fully synchronous learning venues, some students say it is an even more intimate learning experience than the physical classroom.

With thoughtful implementation, technology can actually increase connection. There are more ways to connect in the virtual classroom than in many physical classrooms, which can be large, impersonal and lack adequate audio or visual technology. Some of the tools I use for connecting with students online include: class websites and blogs; pre-course surveys to get to know the class, collectively and individually; class hashtags for social media; group collaboration with professor guidance; and implementation of user-friendly communication tools, such as Remind.com’s texting service, Google Hangouts, or Skype video chats.

In addition, more frequent, personalized communication with students, either through email, text, audio or informal video, can dramatically increase the connectedness of a virtual course.

Myth 3:  Online courses are commoditized and lack rigor.

Many professors and students alike assume that online learning means students can take as little or as much time as they need to complete assignments. This is not true. Quality online programs demand a high level of engagement, interaction and participation.

For example, the fully asynchronous courses I teach combine flexibility with interactivity and collaborative learning. Courses include pre-recorded videos and podcasts that I have created and produced specifically for my class. Students progress through units each week, with regular assignment due dates, peer collaboration and a high level of professor interaction and feedback, unmatched in many traditional classrooms.

With thoughtful implementation of the proper tools to achieve the desired learning outcomes, the virtual venue not only allows, but in many ways encourages, customization and personalization, the opposite of commoditization.  Student-centered instruction that allows for active learning prevents the course from becoming a spectator sport, promoting rigor as well as relevance to the learner.

4. Online learning is all about the technology, not the learning.

The use of technology in the classroom is not a new idea; my ‘80s elementary school classes were filled with film-strips, overhead projectors, and media carts with a single television and VCR. These technologies were used to expose our classroom in rural North Carolina to a broader world and therefore, enhance our opportunities for learning. While the capabilities of today’s technologies are certainly greater, the goals of their use should be no different.

Learning, not the delivery media, venue or other tool, should always be the driver. Good instructional designers and educational technologists begin by listening to the teacher, determining what the learning outcomes are, and selecting a tool only if it helps achieve those outcomes. When done properly, a professor’s ways and means are not lost but in fact enhanced by technology.