Can the same lawyer represent Bannon, Priebus & McGahn?

A recent blog post asks whether William Burck of Quinn Emanuel can ethically represent Steve Bannon, Reince Priebus, and Don McGahn in connection with the Mueller investigation.  The blog post identifies a number of important issues, but the analysis is incomplete.  Although Burck’s representation appears to create a conflict under Rule 1.7(a), Burck could continue the representation under Rule 1.7(b) if he “reasonably believes that [he] will be able to provide competent and diligent representation to each” and each client provides informed consent.  While the public does not — in my view — know sufficient facts to determine whether Burck can reasonably represent all three clients, a complicating factor is that McGahn appears to be giving Burck and Bannon direction as to whether executive privilege applies to Bannon’s testimony.

“This sounds like my ethics class in law school…” Justice Sotomayor

The Supreme Court heard arguments today in McCoy v. Louisiana, which presents the question of whether it is unconstitutional for defense counsel to tell the jury that a client is guilty when the client insists he is innocent. It also raises interesting questions about the ethical obligations under ABA Model Rule 1.2 that “a lawyer shall abide by a client’s decisions concerning the objectives of representation” and ABA Model Rule 3.3, Candor Toward the Tribunal.

As Justice Sotomayor observed in questioning McCoy’s attorney, “this sounds like my ethics class in law school, and this very hypothetical of what do you do with a lying client?” Full oral argument transcript is here.

Adam Liptak noted in the NY Times that the justices seemed likely to side with McCoy: “Several justices said a decision as fundamental as admitting guilt in a capital case belonged to the client rather than the lawyer.” Full article here.

Cross-posted at the Legal Ethics Forum

China’s Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year report | Supreme People’s Court Monitor

Preservation of rule of law and public confidence in the judiciary is a central object of the Rules of Professional Responsibility, and of  course canons of judicial conduct.  These are also concerns of China’s Supreme People’s Court which oversees a vast system and exercises rule-making power that we would see as legislative territory.

Most of the attention given by us in the west focuses on violations of civil rights of dissenters to the Communist Party’s monopoly of political power.   Yet “Rule by law” is a major focus of the ruling party.  It should not be understood as embrace of principles such as an independent judiciary.  But the prompt translation and circulation in China of Chief Justice  John Roberts annual report is evidence of the normalization of China’s judicial system. – gwc

Source: OTHERWISE: Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year report | Supreme People’s Court Monitor

by Susan Finder
Chief Justice John Roberts of the United States Supreme Court may be surprised to learn that a translated version of his 2017 year-end report on the federal courts was recently published by the People’s Court Daily, as it has been for the past twelve years. It was republished by Wechat and Weibo sites affiliated with the Supreme People’s Court (SPC) and other prominent legal websites. What significance does the report have?

The translators that bring the year-end reports to Chinese readers are Mr. Huang Bin (formerly of the SPC’s China Institute of Applied Jurisprudence and now of the National Judicial College, a former Yale Law School visiting scholar) and Ms. Yang Yi (China Institute of Applied Jurisprudence, a former Columbia Law School visiting scholar) are the ones who .
Two subjects in Justice Roberts’ report 2017 are likely to resonate with Chinese readers. The first is how the federal courts dealt with national disasters in 2017 (introductory comments in some of the Wechat versions mention that China has only scattered legislative provisions related to emergency measures for the courts). The second is sexual harassment and Justice Roberts’ request to the Director of the Administrative Office of the United States Courts to organize a working group to review the code of conduct for the federal judiciary, guidance to employees on issues of confidentiality and reporting of instances of misconduct, and rules for investigating and processing misconduct complaints.

OTHERWISE: An era ends at public defender’s office | Di Ionno |

John McMahon,  Chief Trial Attorney at the Newark office of the New Jersey Office of the Public Defender is retiring after 27 years. P.D.s have a wholly undeserved bad name. I tried cases part-time for the P.D. in Newark for four years. Lawyers like McMahon, his father, Dale Jones, Cathy Waldor, Jerry Soffer, Ollis Douglas, Michael Marucci, Verna Leath, and Denise Cobham  were among the best lawyers I met in my thirty year career practicing law in the county. The Public Defender’s office participated in every capital case in new Jersey from restoration in 1982 to repeal in 2017. 225 trials, 60 death sentences, no executions. All this work by dedicated public servants who are not lionized on TV, but who see the humanity in their clients and uphold the highest standards of our profession.

In the photo above he is comparing a picture of his client to the police artist’s drawing of the assailant.   I tried enough “eyewitness ID” cases to know that eyewitness ID’s are highly unreliable.- gwc

Source: OTHERWISE: An era ends at public defender’s office | Di Ionno |

In the public defender’s office in Newark, there are two storage closets filled with clothes.

In one, is a rack of women’s outfits and shelves of neatly arranged men’s and women’s shoes. In the other, are the men’s clothes. The clothes are modest. Presentable. You might say bland. Certainly nothing that calls for attention.

John McMahon calls it “the haberdashery.” It’s where the public defenders go to dress their clients for courtroom appearances in front of judges, juries and news cameras.

The reason?

Nothing says guilty like a department of corrections jumpsuit. Better to have the defendant in civilian clothes, dressed like the jury of their peers.

“It makes a difference,” McMahon said during an interview at his office, which is mostly empty now. Gone are the newspaper clips about his biggest cases, and the pictures of his wife and children. Also gone are the stacks of brown accordion folders, stuffed with volumes of case information for his final few clients.

McMahon, 55, is retiring after 27 years in the Essex County branch of the state public defender’s office, to enter private practice.

And while he reflected on some of his most gratifying legal maneuvers, at the heart of what he did was told through the story of the clothing. ***


The President-as-Plaintiff, the Republican Party and the Battering of Norms – Lawfare

And what about the lawyers who made the blatantly unconstitutional   demand the MacMillan withdraw the book fire & Fury and threatened action for defamation and libel? R.P.C. 1.1 provides  Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation Rudimentary knowledge of the law shows that the demand for withdrawal of the book ad threats of action are without basis in law.  There appears to be a basis for disciplinary action against the Beverly Hills lawyer Charles Harder who penned the notorious letter. – gwc

Source: OTHERWISE: The President-as-Plaintiff, the Republican Party and the Battering of Norms – Lawfare

PrawfsBlawg: First principles of lawyering: don’t lie to your client.

Source: PrawfsBlawg: First principles of lawyering: don’t lie to your client.

by Cassandra Burke Robertson

Howard [Wasserman] noted the swirl of insanity in recent news about the Trump administration. One of the things that is becoming increasingly clear is just how hard it is for the lawyers to do their jobs in this administration, where even the lawyers need lawyers and good legal advice is routinely disregarded.

Many sources are now openly questioning the President’s mental fitness. Not being a physician (and never having spoken to President Trump), I don’t know what his mental state is or isn’t. But even the hypothetical question raises an interesting issue: how should White House attorneys treat a President that they believe may lack the capacity to make decisions in the interest of the office?


The Florida Supreme Court rejects Bar proposed advertising Rule amendment on lawyers’ use of “expert” and “specialist” | Lawyer Ethics Alert Blogs

Source: The Florida Supreme Court rejects Bar proposed advertising Rule amendment on lawyers’ use of “expert” and “specialist” | Lawyer Ethics Alert Blogs

Hello and welcome to this Ethics Alert update on the Bar’s proposed amendment to Florida Bar Rule 4-7.14 on lawyers’ of “specialization” and “expertise” in advertisements which was filed in response to the federal court opinion which found the rule unconstitutional.  The Bar filed an Omnibus Rules Petition with, inter alia, the proposed rule amendment with the Florida Supreme Court and the court issued an opinion on November 9, 2017 rejecting the proposed rule revisions.  The SC opinion is here:

The proposed amendment would have prohibited a lawyer from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  If the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”  The court’s opinion states:

We decline to adopt the Bar’s proposal to amend Bar Rule 4-7.14 (Potentially Misleading Advertisements). The Bar proposes amendments to this rule in response to a decision from the United States District Court for the Northern District of Florida, which held, in relevant part, that provisions in Bar Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from making truthful statements that they “specialize in” or “have expertise in” a particular field of practice were unconstitutional.