Month: February 2017

Prawfsblawg Symposium on Law’s New Frontiers

Renee KnakeLeave a comment

Prawfsblawg recently hosted Law’s New Frontiers, a symposium focused on the books by Richard & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy. The bottom line? Both books are must-reads for those interested in the future of the legal profession. Here are links to the contributions:

Dan Rodriguez, Law’s New Frontiers: an on-line symposium

Phil Weiser, What Susskind can teach law school educators

Andy Perlman, Predicting the future of legal services

Phil Weiser, Hadfield’s anti-institutional innovation agenda and the administrative state

Renee Knake, What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?

Daniel Sokol, The future of law, innovation and disruptive technologies

Andy Perlman, Legal education in the 21st century

Jeff Lipshaw, A response to the Susskinds mostly and Hadfield

Bill Henderson, Losing the scholarly prose

Javier de Cendra, Some reflections on technology, law and legal systems following “The Future of the Professions” and “Rules for a Flat World”

Andy Perlman, Towards the law of legal services: reflections on Gillian Hadfield’s “Rules for a Flat World”

Stephen Denyer, Rules for a Flat World: the UK experience

Cross-posted at the Legal Ethics Forum

Extrajudicial Prosecutorial displays of contraband barred – NJ Ethics Committee

George ConkLeave a comment

Source: Extrajudicial Prosecutorial displays of contraband barred – NJ Ethics Committee

Extrajudicial Statements Featuring Displays of Seized Contraband Are Prohibited by Rule of Professional Conduct 3.6 and 3.8 according to the recently issued  Opinion 731 of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics.

The Committee rejected a prosecution request to relax New Jersey’s long-standing stricture on prosecutorial display of contraband.  The ACPE adhered to the plain language of RPC 3.6 (Trial Publicity):

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

The Inquiring prosecutor argued that the display of seized drugs and paraphernalia would be an educational deterrent to drug abuse – particularly in light of the opioid use crisis which is a current focus of the administration of Governor Chris Christie.  The Governor has appeared in a series of television advertisements urging users to seek treatment.

The Inquirer found support in RPC 3.6 (d) which provides:

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

The ACPE rejected the Inquirer’s argument.  It relied on RPC 3.8 (Special Responsibilities of a Prosecutor) which provides, in part:

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6 or this Rule.

According to an article in the New Jersey Law Journal the Inquirer’s request found little support – even among prosecutors.  The Supreme Court Committee’s rulings are binding on the entire bar subject to discretionary review by the Supreme Court itself.  It is expected that the Inquirer will seek such review.

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility – Call For Papers

Ellen MurphyLeave a comment
Submissions and nominations of articles are now being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017.  The prize will be awarded at the 2018 AALS Annual Meeting in San Diego.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu<mailto:slevine@tourolaw.edu%3cmailto:slevine@tourolaw.edu>.  The deadline for submissions and nominations is September 1, 2017.

Former Prosecutors Call on Texas Court to Re-sentence Death Penalty Case

George ConkLeave a comment

Source: Former Prosecutors Call on Texas Court to Re-sentence Death Penalty Case

by The Constitution Project
Former Prosecutors Call on Texas to Resentence Death Row Prisoner to Life
Court Decries Deadly “Toxin” of Racial Prejudice in Texas Death Penalty Case

WASHINGTON, D.C. — The U.S. Supreme Court, in a 6-2 decision authored by Chief Justice Roberts, ruled in favor of Texas death row inmate Duane Buck, who had been sentenced to death after an expert, Dr. Walter Quijano, told a jury he was more dangerous because he is black. The Court held that Buck’s trial lawyers’ incompetence in offering the prejudiced testimony, combined with the jury’s central duty to determine if Mr. Buck was a future danger, created a “perfect storm.” It went on to explain that the impact of such evidence “cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.”

Following the ruling, an array of former prosecutors called on the State of Texas to end this litigation in the most just way possible: through resentencing Mr. Buck to life in prison. In a statement, Linda Geffin, who prosecuted Mr. Buck at trial; Mark Earley, former Attorney General of Virginia; Michael Cody, former Attorney General of Tennessee; and Scott Harshbarger, former Attorney General of Massachusetts, said, “Each day, Mr. Buck’s actions confirm the fallacy of Dr. Quijano’s testimony: Buck has demonstrated in his nearly two decades on death row that he is no danger to the community.”  The prosecutors further explain: 
 
“As we have previously stated and as the Court has now held, it does not matter if the prosecution or defense counsel ‘broached the subject’ and injected race as a factor to be considered in sentencing a man to death. Race poisoned the outcome in this case and the most appropriate and fair course for the State to take at this juncture is to sentence Mr. Buck to life in prison.”
In advance of oral argument, Geffin, Earley, Cody and Harshbarger joined a group of more than 20 former federal and state prosecutors in a friend-of-the-court brief urging the Court to grant Mr.  Buck relief.  “Prosecutors must seek justice, not just convictions, and that duty sometimes requires foregoing or overturning a conviction in order to protect a defendant’s constitutional rights. Among the most important of those rights is the constitutional assurance that no defendant’s sentence will be determined based upon race,” the prosecutors’ brief asserted. The brief was organized by The Constitution Project, a nonpartisan legal watchdog and advocacy group.
 

The case is Buck v. Davis, No. 15-8049, available at https://www.supremecourt.gov/opinions/16pdf/15-8049_f2ah.pdf

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About The Constitution Project ®

Created out of the belief that we must cast aside the labels that divide us in order to keep our democracy strong, The Constitution Project brings together policy experts and legal practitioners from across the political spectrum to foster consensus-based solutions to the most difficult constitutional challenges of our time through scholarship, advocacy, policy reform and public education initiatives. Established in 1997, TCP is based in Washington, D.C.

Losing Strategy Does Not Establish Ethics Violation -Legal Profession Blog

George ConkLeave a comment

Source: Losing Strategy Does Not Establish Ethics Violation -Legal Profession Blog

 

Losing Strategy Does Not Establish Ethics Violation

An Ad Hoc District of Columbia Hearing Committee, applying Virginia law,  proposes a 45-day suspension with automatic reinstatement for an attorney’s alleged mishandling of a wrongful death case in Virginia federal court.
The  disciplinary case is In re Gregory Lattimer
During that [summary judgment] hearing, the Court noted that “I think you should have sued the lady who was supposed to sit in the yellow chair. That is the person whose error or whose inattentiveness led to the death in this case. And if you had sued her, you would have had a slam dunk. And I think the state probably has insurance to cover that. At least they did when I was in the Attorney General’s office.” (D.C. Exh. 31 at 29). However, in its Rule 26(a) disclosures, the Commonwealth had answered “N/A” to the question whether there was any insurance agreement available for inspection and copying. (D.C. Exh. 4B at 3).
In the losing appeal to the United States Court of Appeals for the Fourth Circuit
In her opinion for the Court, Judge Thacker noted Respondent’s statements concerning Dr. Davis and his misstatement as to when the Complaint was filed. On May 2, 2014, Judge Thacker referred the matter to Disciplinary Counsel, saying “I forward it for your consideration inasmuch as I question Mr. Lattimer’s handling of the case as well as his candor to the court.” Respondent never sent Ms. Wilkins a copy of the Court of Appeals decision. (citations to record omitted)

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***the Committee does not believe Disciplinary Counsel has shown that Respondent’s misconduct in this case raises serious questions as to his fitness to practice law. Respondent’s misconduct occurred in a single case; it was a difficult case and he was dealing with a difficult client. While his decisions have proven to have been ill-advised, Disciplinary Counsel has not shown that they were unreasoned or beyond the discretion accorded lawyers in making strategy decisions. He should have done more homework before launching on his perilous flight, but that does not mean that his theory of the case establishes that he lacks the capacity to practice law. Indeed, the record here indicates that there was substantial preliminary evidence to support his theory. His problem is that he did not conduct a sufficient fact inquiry before filing the Complaint and waited too long to file it.
Disciplinary Counsel had sought a 90-day suspension with fitness.
– Michael Frisch

New ABA Rule, Virginia Ethics Opinion Focus on Substance Abuse by Lawyers and Students

George ConkLeave a comment

Source: New ABA Rule, Virginia Ethics Opinion Focus on Substance Abuse by Lawyers and Students

Two recent developments have focused attention on lawyers and disability.  The ABA House of Delegates has approved a rule change that ” includes a requirement for lawyers to receive at least one hour of mental health or substance use disorder programming every three years. It also calls for one hour of diversity and inclusion programming every three years.”  It was proposed by the American Bar Association Standing Committee on Continuing Legal Education, working with its Commission on Lawyer Assistance Programs.

The problem is not limited to lawyers.  As the Journal of Legal Education has reported law students are reluctant to seek help for substance abuse and mental health concerns.

The second is a new Formal Opinion by the Virginia State Bar discussing the duties of supervisory lawyers. – gwc

Virginia State Bar Legal Ethics Opinion 1886 

DUTY OF PARTNERS AND SUPERVISORY LAWYERS IN A LAW FIRM WHEN ANOTHER LAWYER IN THE FIRM SUFFERS FROM SIGNIFICANT IMPAIRMENT

IntroductionIn this advisory opinion, the Committee analyzes the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public.1  The applicable Rule of Conduct is Rule 5.12 which requires partners or other lawyers in the firm with managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to the Virginia Rules of Professional Conduct.3  Lawyers in a firm may have an obligation under Rule 8.3 to report an impaired lawyer to the Virginia State Bar if the impaired lawyer has engaged in misconduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law. However, this opinion addresses the obligations of partners and supervisory attorneys to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public. This opinion relies upon ABA Committee on Ethics and Professional Responsibility, Formal Opinion 03-429 (2003) [hereinafter ABA Formal Op. 03-429] for its approach to the issues raised by the mental impairment of a lawyer in a firm.

Scope of the Lawyer Impairment ProblemStudies report that lawyers experience depression, alcohol and other substance abuse at a rate much higher than other populations and 2 to 3 times the general population.4  The incidence of alcohol abuse is higher among lawyers aged 30 or less.5 Besides the potential lawyer impairment caused by substance abuse, the aging of the legal profession presents an increased incidence of cognitive impairment among lawyers.  As of 2016, Virginia State Bar membership records revealed that of the 23,849 active members located in the Commonwealth, 8,366 or 35% are ages 55 or older.  Fifteen percent of these attorneys or 3,584 members are 65 or over.  These numbers reflect that Virginia’s lawyers, like lawyers nationally, are moving into an older demographic profile, and they continue to practice as they age. Moreover, in the years ahead, the number of lawyers that will continue to practice law beyond the traditional retirement age will increase dramatically.6 The substantial percentage of aging lawyers presents both opportunities and challenges for the state bars, and the scope and nature of the challenges and the best way to manage the challenges have been examined by bars around the country.

Question PresentedWhat are the ethical obligations of a partner or supervisory lawyer who reasonably believes another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public?

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Lawyer disciplined for failure to investigate client //Legal Profession Blog

George ConkLeave a comment

Source: Lawyer disciplined for failure to investigate client //Legal Profession Blog

A powerful dissent by one member of an Illinois disciplinary board argues the decision imposes a heavy burden on lawyers to investigate their clients’ purposes when drafting wills, powers of attorney, etc. The lawyer, at the request of a  client, drafted papers transferring an ailing  friend’s house to the non-client in suspicious circumstances. There was overreaching, the house transferred under duress.  The lawyer was found to have breached his duty to protect the third party.  The decision could drive clients to Legal Zoom wrote the dissenter!

Legal Profession Blog // Michael Frisch

Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys

George ConkLeave a comment

Source: Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys

by Professor Alberto Bernabe

Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:

We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.

This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don’t know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know.