How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

Source: OTHERWISE: How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

The furious tweets of Donald Trump that attorney client privilege is dead are repeated in the restrained language of his lawyers’ memorandum.

 As usual the best source of information is the primary source: the United States Department of Justice, whose memorandum (excerpted in the post above) explains how any documents protected by attorney client privilege will be handled.  In essence the process is to determine if documents seized  contain communications between attorney and client which relate to the representation. Confidentiality is protected – unless the communication is evidence of the attorney’s participation in a crime – in which case a judge’s review till be sought.  – gwc

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion BY GEOFFREY MARCUS A recent opinion from the New York Cit…

Source: OTHERWISE: Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion


A recent opinion from the New York City Bar Association’s Committee on Professional Ethics finds that a lawyer may disclose a limited amount of confidential information when a prospective client with serious diminished capacity is at risk of substantial physical, financial, or other harm.  Read the full opinion here.

The opinion describes a scenario in which a neighbor brought a tenant facing immediate eviction to an attorney for legal assistance. During their meeting, the attorney became concerned that the tenant was so seriously mentally incapacitated that she could not retain a lawyer. Despite the absence of an attorney-client relationship, the attorney still wanted to help the tenant.

Rule 1.14 of the ABA Model Rules of Professional Conduct explicitly addresses the circumstances in which a lawyer may take protective action for the benefit of current clients with diminished capacity. The rule remains silent as what a lawyer can do for prospective clients, but the Committee’s recent opinion provides guidance on this issue.

The Committee concluded that mental capacity is not a factor in determining whether a person is a prospective client and that lawyers owe the same duty of confidentiality to prospective and current clients alike. The Committee references Rule 1.14(c), which provides lawyers with implied authorization under Rule 1.6(a) to disclose confidential information reasonably necessary to protect current clients with diminished capacity. Therefore, the Committee reasons that Rule 1.14(c) applies to prospective clients.

In addressing the earlier scenario with the tenant, the Committee noted that the “lawyer is impliedly authorized to reveal confidential information about the prospective client to a court, a social services agency or another, but only to the extent reasonably necessary to protect the prospective client’s interests.” However, the Committee emphasizes that, when a lawyer interacts with the court and others, she must clarify that she does not represent the prospective client and that no attorney-client relationship exists.

OTHERWISE: Lawyer investor in litigation funding in conflict with client it finances – NY State Bar Assocation

In an advisory ethics opinion the New York State Bar Association has says that RPC 1.8. bars a lawyer with a substantial interest in a litigation finance company from representing a client whose litigation is financed by that company.  This seems right to me.  For access to justice reasons we allow a lawyer to have a stake in the outcome of litigation.  But a significant ownership interest in the financier adds another layer to what is already an inherently conflicted representation. Read the full opinion here.

Source: OTHERWISE: Lawyer investor in litigation funding in conflict with client it finances – NY State Bar Assocation

OTHERWISE: ‘Generally Known?”: ABA Clarifies Attorney’s Duty of Confidentiality | Legal Ethics in Motion

‘Generally Known?”: ABA Clarifies Attorney’s Duty of Confidentiality | Legal Ethics in Motion Professional Responsibility and Ethics Progra…

Source: OTHERWISE: ‘Generally Known?”: ABA Clarifies Attorney’s Duty of Confidentiality | Legal Ethics in Motion

In December, the ABA issued Formal Opinion 479, clarifying the concept of “generally known” in ABA Model Rule 1.9(c)(1). Under the rule, “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”

Confidentiality is one of the foundational concepts of professional responsibility, and an attorney’s duty of confidentiality extends to both former and current clients. ABA Model Rule 1.9(c)(1) provides that an attorney cannot use information related to the representation of a former client in a way that disadvantages that client devoid of their informed consent, unless that information has become “generally known.”

The “generally known” exception of Rule 1.9(c)(1) has been the subject of some debate. As such, the ABA Standing Committee on Ethics and Professional Responsibility recently provided guidance on the connotation of this exception in Formal Opinion 479. Courts have held that information is “not generally known just because it’s a public record or in a court filing. The information must be within the understanding and knowledge of the general public.” Opinion 479 states that information is generally known if “(a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession or trade.” The ABA Opinion adds that information can become widely recognized through “traditional media sources, such as newspapers, magazines, radio or television; through publication on internet websites; or through social media.”

Additionally, the Opinion states that “information that is publicly available is not necessarily generally known.” “Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).” The opinion adds that “for information to be generally known, it must previously have been revealed by some source other than the lawyer or the lawyer’s agents.”

Opinion 479 is in concurrence with numerous state bar ethics opinions, such as the 2017 New York State Bar Association Committee on Professional Ethics, which state that “information is not ‘generally known’ simply because it is in the public domain or available in a public file.”

Read ABA Formal Opinion 479 here. To read the ABA Journal article on the Opinion, click here.

Reasonable Fee for Law Clerk Cannot equal lawyers’ fees  | Legal Ethics in Motion

Attorney-Client Relationship | Legal Ethics in Motion by Professionl Responsibility and Ethics Program/ University of Miami Law School Las…

Source: OTHERWISE: Attorney-Client Relationship | Legal Ethics in Motion

Last month a Tampa attorney settled a case brought against her by the Florida Bar for, among other things, charging excessive fees. The Florida Bar’s complaint specifically stated that the attorney’s “hourly rate of $400 per hour for the services of law clerks was clearly excessive.” While the Florida Bar has brought claims against attorneys for unethical billing practices, it has generally avoided the question of law clerk fees. This case clarifies that, in the eyes of the Florida Bar, law clerks are non-lawyers and cannot be billed at the same rate as an attorney admitted to the state bar.

 ABA Opinion warns against judges doing online research on facts related to cases

Source: OTHERWISE: ABA Opinion warns against judges doing online research on facts related to cases

by Raymond J. McKoski// ABA Journal

IFormal Opinion 478, the ABA Standing Committee on Ethics and Professional Responsibility addresses the restrictions imposed by the 2007 ABA Model Code of Judicial Conduct on a judge searching the internet for information helpful in deciding a case. The ABA opinion concludes that Rule 2.9(C) of the Model Code prohibits a judge from researching adjudicative facts on the internet unless a fact is subject to judicial notice.

Rule 2.9(C) clearly and definitively declares that “a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Acknowledging the integral part that search engines play in everyday life, Comment 6 to Rule 2.9 bluntly tells judges that the prohibition “extends to information available in all mediums, including electronic.”

While recognizing that the internet, including social networking sites, provides immediate access to a limitless amount of information potentially useful to a judge laboring over difficult case-specific factual issues, the recent ABA opinion highlights two important justifications for the prohibition against electronic factual research.

First, information found on the web may be fleeting, biased, misleading and sometimes downright false. Second, unless the narrow judicial-notice exception applies, gathering even trustworthy information from the internet compromises the division of responsibility between the judge and the parties so essential to the proper functioning of the adversarial system. The committee emphasizes this point by describing the “defining feature” of the judicial role as a judge’s duty to base decisions only on evidence presented in court and available to the parties.

The limitations on independent factual research by judges are not solely a matter of judicial ethics. Rule 2.9(C) is one of the few provisions of the Model Code that integrates an evidentiary rule into an ethical standard. Rule 2.9(C) permits a judge to consider a fact from sources other than the evidence submitted by the parties as long as the judge abides by his or her jurisdiction’s requirements for taking judicial notice of the fact. Incorporating a rule of evidence into an ethical rule complicates the analysis because, as noted by the committee, judicial notice standards and procedures vary significantly from jurisdiction to jurisdiction.

To illustrate how Rule 2.9(C) and the doctrine of judicial notice interface, the committee examines Federal Rule of Evidence 201, which governs judicial notice. FRE 201(a) and (b) permit judicial notice of a fact that relates to the parties in a case (an adjudicative fact) only when that fact is “not subject to reasonable dispute” because it is (1) “generally known” or (2) “accurately and readily determined” from a source “whose accuracy cannot reasonably be questioned.” Even if a “fact” meets this rigorous test, the judge must provide the parties with an opportunity to contest the need to notice the fact and a chance to challenge the accuracy of the fact. Like most state rules governing judicial notice, the federal rule only bars judicial notice of adjudicatory facts. The doctrine does not restrict a judge’s independent research of legislative facts, such as statistical, sociological and economic studies, which differ from adjudicative facts in that they are not unique to the litigants but are facts that assist a judge in deciding questions of law or policy.

The committee offers four guidelines to help judges determine the ethical propriety of investigating facts on the internet. Because the guidelines are by necessity general in nature, the committee also provides hypothetical scenarios to illustrate their application.


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.