Casebook contributor Laurel Terry recently returned from London where she spoke at the closing session of the first-ever International Conference of Legal Regulators http://www.international-conference-of-legal-regulators.org/ . The conference brought together lawyer regulators from around the worth to exchanges information and views on the challenges they face and their approaches to regulation. The conference concluded with a commitment by the regulators to form a network to continue these types of exchanges. Regulators in other fields – such as securities and antitrust – participate in these types of international networks.
We are planning to add a new feature to the next edition of the casebook that will compare U.S. rules and approaches to those internationally. The will identify these comparisons as “international boxes” and we will have at least two for each chapter. Prof. Laurel Terry of Penn State University, who is joining the casebook as a co-author, has written these boxes. Please feel free to use them in your classes and to offer Prof. Terry any comments or suggestions you have that will assist in the writing of the next edition.
By Bruce Green
Are prosecutors adequately complying with their discovery obligations under the constitution and other laws – including state ethics rules based on ABA Model Rule 3.8(d)? Do prosecutors’ offices take sufficient measures to promote compliance? These are among the hottest subjects of discussion in criminal justice. The discussion has been fueled in recent years by the Duke lacrosse and Ted Stevens prosecutions, among others, in which prosecutors have been found to have acted improperly. Connick v. Thompson and other recent Supreme Court cases also illustrate the problem, which was the subject of a two-day Cardozo Law School conference not long ago and will be addressed at an upcoming Mercer Law School symposium. Illustrating that discussions can be not just hot but also heated, the NYS Bar Association and the state prosecutors’ association recently got into a contretemps over a column written by the criminal defense lawyer who chairs the bar association’s criminal justice section. The prosecutors took offense at a suggestion that prosecutors’ offices train their lawyers to violate their discovery obligations. The two associations have now reportedly reached what, one might hope, is a resolution of the disagreement. Ideally, this will allow lawyers on both sides of the aisle to go back to work, live in peace, and perhaps even collaborate productively in the bar association and other fora to improve the criminal justice process for the public benefit.
You can read more here.
By Bruce Green
A front-page NY Times article described partnerships between district attorneys and debt collection agencies. Evidently, the agencies use DA letterhead to threaten to prosecute debtors unless they both make good on their bounced checks and pay an additional amount to fund an educational program on financial responsibility that they will then have to attend. The prosecutors’ offices take a cut.
This scenario provides an opportunity to explore prosecutors’ special role and some of the limitations and obligations that come with it. In particular, the scenario raises at least five questions relating to prosecutors’ role, responsibilities and exercise of discretion:
1. Evidently, no prosecutor is determining that there is a sound basis for threatening debtors with criminal prosecution. A bounced check may not be enough in itself to establish a basis for a criminal prosecution if, for example, the checking account was overdrawn unknowingly. May prosecutors threaten to prosecute individuals for writing bad checks without first determining that there is a basis – e.g., probable cause – to support a prosecution? ABA Model Rule 3.8(a) requires probable cause before filing a charge. Should the same be required before threatening to file one?
2. If some review of the evidence and exercise of judgment are necessary before making these threats, must they be made by a disinterested prosecutor, rather than by a collection agency acting with prosecutors’ authority and paying for the use of prosecutors’ letterhead? Prosecutors have “the responsibility of a minister of justice,” says the Comment to ABA Model Rule 3.8. Can they delegate that authority to a for-profit company acting on behalf of creditors who may or may not have legitimate civil claims?
3. Do the prosecutors really intend to prosecute those who receive letters and do not make the demanded payments? If the threats are empty, are the letters impermissibly misleading under ABA Model Rules 4.1(a) or 8.4(c)?
4. If the prosecutors do plan to carry out the threats, are they doing so for an improper purpose? Prosecutors have vast discretion to decide whether to prosecute, or threaten to prosecute, bad check cases when there is evidence to support a charge. But some bases for making this decision may be illegitimate. One can imagine deciding to bring charges based on the amount of the check or the number of bounced checks. But is it legitimate to single out debtors for threatened prosecution because a particular collection agency is paying the prosecutor’s office to do so? Is this an abuse of power that is “prejudicial to the administration of justice” in violation of ABA Model Rule 8.4(d)?
5. Prosecutors may receive allegations of wrongdoing committed by the collection agencies with whom they are partnering – e.g., allegations that they defrauded debtors or committed frauds on the court. If so, will the prosecutors have a conflict of interest under ABA Model Rule 1.7(a)(2) that interferes with their ability disinterestedly to investigate and address the allegations? Do prosecutors have a duty to avoid partnering with collection agencies in order to avoid these possible conflicts?
The New York Post headline reads: Bazooka vs. mouse: City using free power lawyer to evict vendor . The story describes how Proskauer Rose is representing the City pro bono in evicting a “longtime Greenwich newsstand operator beloved newsstand operator beloved by thousands of New Yorkers and made famous in feature films.” The Post raises the question of whether representing Goliath against David is an appropriate use of pro bono legal services What do you think?
The case involves Troutman’s representation of HSBC with regard to a loan to famed Democratic fundraiser Hassan Nemazee, who is serving a 12 year prison sentence for bank fraud. More fodder for Chapter 2: HSBC Sues Troutman
Another story for Chapter 6, Part II. Thomson Reuters reports:
Holland & Knight has agreed to pay $25 million to settle a lawsuit accusing the law firm of missing red flags that would have revealed that its client, the hedge fund manager Arthur Nadel, was operating a Ponzi scheme that duped investors out of $168 million.
Chapter 2 includes references to ABA Model Rules 1.1, 1.4, 5.3, and 5.5, all of which were modified in August 2012 pursuant to the recommendations of the ABA Commission on Ethics 20/20. None of the changes, however, require any significant changes in the analysis found in the casebook or the teacher’s manual although the quotations of Rule 5.5(d) and the title of Rule 5.3 need to be updated.
1. P. 21 of the Teacher’s Manual. The correct answer to Question 10 should be B. The analysis on that page is correct. The change in correct answer has already been made in the on-line quizzes in the Faculty Program section of TWEN and accordingly TWEN will grade the quiz correctly.
2. P. 22. The the correct answer to Question 13 is B. The analysis is correct. The change in correct answers has already been made in the on-line quizzes in the Faculty Program section of TWEN and accordingly TWEN will grade the quiz correctly.
3. PP. 28-29. Question 1 is a more complicated situation. The correct answer D accords with the Rules that the casebook provides the students. Rule 1.16 (a) mandates withdrawal and Rule 1.6 prohibits disclosure of confidences. The casebook, however, does not include Rule 1.3, Comment 5, which provides that:
To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.
This language suggests that C is the correct answer. You now have a choice of how to deal with Question 1. You can leave the question as is and introduce Rule 1.3, Comment 5 in class. Or you can assign Rule 1.3, Comment 5 before the students take the quiz and in TWEN change the correct answer to C.
By Russ Pearce
The People of Channel 38, a group of American University law grads, have created a top quality rap video which presents an overview of legal ethics.
It’s so brilliant that I would love to use it in class but I worry that some students may be offended. Instead, I am assigning as optional viewing.
What do you think? Please let us know.
I would like to introduce Supreme Court Boxes — a new feature that we plan to incorporate in the second edition. When a Supreme Court decision is integral to understanding a concept, we of course include excerpts in the book. But among the Supreme Court’s large number of recent cases on the legal profession there are many other decisions that might be fun for the students to explore. Accordingly, one of our new contributors, Prof. Renee Newman Knake, has created a feature called Supreme Court boxes, where for each chapter she will provide two very brief descriptions of recent Supreme Court decisions that faculty and students might find of interest, together with relevant links. I attach her draft Supreme Court boxes for every chapter in the book. Many thanks Renee!
Welcome! We would like you to join our community as we promote study of, and debate regarding, the professional responsibility of lawyers. Although our blog will serve as a resource for users of Professional Responsibility: A Contemporary Approach (3d 2017), the current developments, innovative teaching materials, and commentary should be thought-provoking and fun for all those interested in the legal profession. Please feel free to share your ideas, and we will post as much as we can.
by Renee Newman Knake
I kicked off the semester trying something new in my Professional Responsibility class today – a live Tweet wall. You can see how it went by searching for #knakePR
Here some are the reasons why I decided to add this as a component of my course:
1. Twitter is an example of the technology awareness now required of lawyers in the latest revisions to the comments of ABA Model Rule 1.1 Competence.
2. It is important for law students to understand that their professional identity begins now, particularly when they are using social media.
3. Live Tweeting provides an alternative method of in-class participation.
4. At least according to the Brits, Twitter is one of the leading ways to develop a client base. See Twitter becoming key referral source for solicitors, says research from the Legal Futures Blog, June 14, 2012
I’ll let you know how it goes with an update post later in the semester. In the meantime, feel free to follow me on Twitter @reneeknake
By Luis Calvo
Starting next year, New York will be the first state to require new lawyers to perform pro bono work before being licensed to practice. Read more here: http://www.nytimes.com/2012/05/02/nyregion/new-lawyers-in-new-york-to-be-required-to-do-some-work-free.html?_r=1