New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

Source: OTHERWISE: New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

The New York City Bar Association has sent a letter to Congressional leaders, urging them “to commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice.”

The letter asserts that in several extended public statements during the past few months, Mr. Barr has disregarded “bedrock obligations for government lawyers,” including “to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities.”

These statements include an October speech at the University of Notre Dame, now posted on the Department of Justice’s website, in which Mr. Barr stated that “the Founding generation . . . believed that the Judeo-Christian moral system corresponds to the true nature of man” and that “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.” Expressing his view that “Judeo-Christian values . . . have made this country great”—while simultaneously rejecting the moral basis of secularism and, by implication, other religions (and atheism) as “an inversion of Christian morality,” Mr. Barr vowed to place the Department of Justice “at the forefront” of efforts to resist “forces of secularization.”

In a November speech at the Federalist Society’s National Lawyers Convention, Mr. Barr charged that “opponents of the Trump presidency’s policies” have been “engaged in the systematic shredding of norms and the undermining of the rule of law” and referred to what he called a “progressive holy war,” characterized by the use of “any means necessary to gain momentary advantage.” By contrast, Mr. Barr proclaimed, conservatives “tend to have more scruple over their political tactics” and are “more genuinely committed to the rule of law.”

In December – following earlier remarks at a Fraternal Order of Police gathering in which he criticized District Attorneys from “large cities” who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law,” and “an increasingly vocal minority” that “regularly attacks the police and advances a narrative that it is the police that are the bad guys”  and “automatically start[s] screaming for the officers’ scalps, regardless of the facts” following “a confrontation involving the use of force by police”– Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.” While Mr. Barr did not specify which “communities” were at risk of seeing decreased police protection because they lack respect for law enforcement, and notwithstanding his later denial that he had suggested that people should not criticize police officers and his assertion that he had merely been referring to the high rates of job vacancies in police agencies throughout the country, “his comment was understood by some observers, not unreasonably, as being directed toward members of communities of color protesting excessive use of force by police,” the letter states.

Standing Up for Public Defenders

Source: OTHERWISE: Standing Up for Public Defenders

On January 6 the New Jersey Supreme Court heard oral arguments in this matter, which considers whether an attorney acting on behalf of the government to represent a private client in a litigated matter, where representation is provided as a constitutional right, is entitled to protections under the Tort Claims Act (TCA) when sued for legal malpractice. George Conk, arguing on behalf of the New Jersey State Bar Association, urged the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims:

Our fundamental objectives are to serve the public by protecting the integrity, competence, and vitality of the Bar; help to assure citizens access to justice and adequate remedies, and to assist the Courts in their mission to guarantee that justice is done. This court granted certification to answer two questions:[1] Are legal malpractice claims exempt from the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and

[2] Is plaintiff’s “loss of liberty” damages claim subject to the verbal threshold of the TCA?*

The answer to the first question must be NO.  Lawyers such as full and part time Public Defenders serve the State by whom they are employed.  They help to vindicate the Constitutional obligations of due process, equal protection, and fair trials.  But such public servants – full or part time – may falter and thereby give rise to professional liability claims.
Competent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs.  Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill-served. The Tort Claims Act blocks frivolous claims via its verbal threshold (59:9-2), limits certain damages [e.g. grants credits for collateral sources, pre-judgment interest.  The Act bars civil punitive damage awards against the State and any other public entity.  But compensatory damages are not capped.  Costs of defense are beyond the capacity of staff PDs and of the typically young, free-lance pool attorneys.

Antonio Chaparro Nieves was represented by a public defender when he was convicted of several crimes for which he served 12 years and four months. He was ultimately released, the charges were dismissed on his petition for post-conviction relief, and he has recovered under the Mistaken Imprisonment Act. The trial court ruled that the procedural requirements of the Tort Claims Act do not apply to legal malpractice claims. The Appellate Division reversed, holding that the Office of the Public Defender is a public entity and that public defenders are public employees who fall within TCA’s immunities and defenses.
“[T]he qualified immunity and indemnification afforded to lawyers under the Tort Claims Act is an important guarantee of the availability and independence of counsel who provide constitutionally mandated representation to those who cannot afford counsel, whether a lawyer is acting as a direct employee of the state, as a pool attorney hired through a state agency, or on a pro bono basis assigned by the Court,” said the NJSBA in its brief. While the NJSBA encouraged the Supreme Court to expand that immunity not just to public defenders, but also to pro bono attorneys assigned from the Madden list, the Supreme Court declined to hear the NJSBA’s arguments relative to Madden list representation.
* The Bar Association did not address the second question.

 For Guidance on Judiciary Party Balance, Look to NJ | Editorial – New Jersey Law Journal

Source: OTHERWISE: For Guidance on Judiciary Party Balance, Look to NJ | Editorial – New Jersey Law Journal

by the Editorial Board

Delaware’s constitutional guarantees of a bipartisan judiciary fail the test of the First Amendment, the United States Court of Appeals for the Third Circuit held recently in ADams v. Governor of Delaware.
The state’s Constitution limits qualification of state Supreme Court to members of the two “major” political parties. No more than a bare majority of judges associated with a party may serve. A different provision provides that no more than a bare majority of Superior Court judges may be from the same party. The result is that none but Democrats and Republicans serve the Delaware courts. A sometime-Democrat, sometime-independent lawyer James Adams challenged the status quo because as an independent he was disqualified from seeking judicial office. The Third Circuit in an opinion by Julio Fuentes rejected the governor’s argument that because judges are policymakers he is free of constitutional restraints and can appoint who he chooses from among the members of the major political parties in Delaware.

Lawyers have the right to change firms: ABA Formal Opinion 489

Source: OTHERWISE: Lawyers have the right to change firms: ABA Formal Opinion 489

Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm.

OTHERWISE: I’ve not gotten over Brett Kavanaugh ~ Dahlia Lithwick ~ Slate

https://slate.com/news-and-politics/2019/10/year-after-kavanaugh-cant-go-back-to-scotus.html

Don’t we all face this problem?

By Dahlia Lithwick  Slate

“It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice. Our attempts to get over CIA torture policies or the Iraq war or anything else don’t bring us closer to truth and reconciliation. They just make it feel better—until they do not. And we have all spent far too much of the past three years trying to tell ourselves that everything is OK when it most certainly is not normalnot OK, and not worth getting over.”

Source: OTHERWISE: I’ve not gotten over Brett Kavanaugh ~ Dahlia Lithwick ~Slate

OTHERWISE: Arbitration clause in legal malpractice claim barred by New Jersey appellate court

The New Jersey legal community has been roiled by an unpublished – but binding – Appellate Division decision that barred enforcement of the mandatory arbitration provision of a prominent firm’s standard retainer agreement.

In Delaney v. Dickey and Sills Cummis & Gross, P.C., 2019 WL 3982756, a legal malpractice action, plaintiff Brian Delaney claims the retainer agreement used by defendants   violated several RPCs and therefore its provision to arbitrate all disputes arising from the representation should not be enforced. The Chancery Division judge rejected the argument but a three judge panel reversed. Sills has now appealed to the state’s Supreme Court, and Delaney’s lawyer agrees the Court should grant certification….

Source: OTHERWISE: Arbitration clause in legal malpractice claim barred by New Jersey appellate court