Concluding that Donald Trump and his lawyer and former law dean John Eastman “more likely than not” conspired to obstruct Congress. California Federal District Judge David Carter has in Eastman v. Thompson Carter concluded the crime-fraud exception applied to a draft memo for Trump’s lawyer Rudy Giuliani that otherwise would be protected by attorney-client privilege. – GWC
Presented by the Committee on Professional Responsibility and Conduct
April 15, 2022
9:30 a.m.–4:10 p.m. Live Stream via Zoom
Cost: Free (Registration limited to 1000 participants)
This program offers up to 5 hours of participatory MCLE credit (4.0 hours of legal ethics and 1.0 hour of elimination of bias). This program has also been approved for legal malpractice legal specialization credit by the State Bar.
9:30 a.m.–9:45 a.m. Welcoming Remarks
- Justin J. Fields: Chair, Committee on Professional Responsibility and Conduct
- Ruben Duran: Chair, Board of Trustees of the State Bar of California
9:45 a.m.–11:00 a.m. Recent Developments in Legal Ethics and Professional Conduct–What You Need to Know
This panel will discuss important developments in legal ethics, centering on recent and developing advisory ethics opinions prepared by COPRAC and other professional conduct developments. Topics will include client file release and retention duties, ethics of in-house counsel, cryptocurrency, and civility and professionalism.
- Justin J. Fields: Moderator; Chair, Committee on Professional Responsibility and Conduct; Partner, Duane Morris LLP, San Francisco
- Sarah J. Banola: Vice-Chair, Committee on Professional Responsibility and Conduct; Partner, BRB Law LLP, Oakland
- Dena M. Roche: Advisor, Committee on Professional Responsibility and Conduct; Partner, O’Rielly & Roche LLP, San Francisco
11:10 a.m.–12:25 p.m. Entry Into the Practice of Law
This panel will address significant issues, impediments, and developments related to entry into the practice of law. These will include barriers to admission related to legal education and bar pass rates, the level of ethics education new lawyers receive, and ethical pitfalls new lawyers face, as well as proposals to expand access to legal service.
- Brandon N. Krueger: Moderator; Member, Committee on Professional Responsibility and Conduct; Shareholder, Sall Spencer Callas & Krueger, A Law Corporation, Laguna Beach
- Carole J. Buckner: Partner and General Counsel, Procopio, San Diego
- Erin M. Joyce: Shareholder, Erin Joyce Law P.C., Pasadena
- Toby J. Rothschild: Of Counsel, OneJustice, Westminster
12:25 p.m.–1:30 p.m. Lunch
1:30 p.m.–2:45 p.m. Ethical Issues – Attorney Fees and Billing
This panel will address ethics issues and recent developments regarding attorney fees and billing practices. The panel will discuss proposed COPRAC opinions regarding flat fees and conversion clauses in contingent fee agreements and the impact of the current Rules of Professional Conduct, recent cases and developments in the field of attorney fees, billing, mandatory fee arbitration, suspect billing practices, and other fee and billing ethics issues.
- Kenneth E. Bacon: Moderator; Member, Committee on Professional Responsibility and Conduct; Senior Counsel, Mastagni Holstedt, A.P.C., Sacramento
- Joel Mark: Attorney, Joel Mark, Esq., Palm Desert
- Lorraine M. Walsh: Attorney, Law Office Lorraine M Walsh, Walnut Creek
2:55 p.m.–4:10 p.m. Eliminating Bias in the Courtroom
This panel will discuss eliminating bias in the litigation arena with a focus on the courtroom. This panel will cover recent studies in bias on the bench, new laws governing jury selection in criminal cases, and guidance on how to eliminate conscious an unconscious bias from trial work in the context of ethical requirements.
- Hunter E. Starr: Moderator; Member, Committee on Professional Responsibility and Conduct; Deputy District Attorney, Kern County District Attorney, Bakersfield
- Amyra C. Cobb-Hampton: Deputy Public Defender, Solano County Office of the Public Defender, Fairfield
- Terrance J. Evans: Partner, Duane Morris LLP, San Francisco
- Ivy B. Fitzpatrick: Managing Deputy District Attorney, Riverside County District Attorney, Riverside
- Jeanine E. Kraybill, PhD: Associate Professor of Political Science and Pre-Law Program Director, California State University Bakersfield, Bakersfield
This year the Ethics Symposium is being offered for free and is limited to 1,000 registrants. Register online no later than April 6, 2022.
Note: All registrants will receive a confirmation email with the link and password to the Zoom webinar. Only those who attend will receive an email following the event, containing a link to their MCLE certificate. When registering for the event, provide the email address associated with your Zoom account. You will use this email address to log into the event and this will allow us to verify your attendance.
This program offers up to 5 hours of participatory MCLE credit (4.0 hours of legal ethics and 1.0 hour of elimination of bias). This program has also been approved for legal malpractice legal specialization credit by the State Bar. The State Bar and the Committee on Professional Responsibility and Conduct are approved State Bar of California MCLE providers.
For questions regarding registration, program content, or requests for special assistance, please call 415-538-2116.
In compliance with the Americans with Disabilities Act, those requiring accommodations for this event should notify Angela Marlaud at: (415) 538-2116. Please provide notification at least 72 hours prior to the event to allow sufficient time to make arrangements for accommodations.
In Delaney v. Dickey the New Jersey Supreme Court held that an attorney may include provisions in their retainer agreements that bind the client to arbitrate a future fee dispute or legal malpractice action, provided lawyers adequately explain the provisions to the clients. But the court said that their opinion would not be the last word – and announced it was referring the issue to its Advisory Committee on Professional Ethics.
Sometimes you get what you asked for: here the ACPE urged the Court to reconsider its decision, saying that obtaining informed consent to arbitration of malpractice before any dispute has arisen is a practical impossibility.
The link below will bring you to the ACPE’s report and proposals in the event the Court does not agree to revise their view on the issue. – GWC
[Disclosure – I am a member of the ACPE]
NOTICE TO THE BAR – Supreme Court of New Jersey
ARBITRATION PROVISIONS IN RETAINER AGREEMENTS AND
THE SCOPE OF AN ATTORNEY’S DISCLOSURE REQUIREMENTS
(DELANEY V. DICKEY) – COMMENTS REQUESTED
The Supreme Court requested the Advisory Committee on
Professional Ethics (ACPE) to study the issues arising in the case
Delaney v. Dickey, 244 N.J. 466 (2020), and to “make recommendations to [the] Court and propose further guidance on the scope of an attorney’s disclosure requirements.” 244 N.J. at 474. The Court in Delaney found that lawyers may include provisions in their retainer agreements that bind the client to arbitrate a future fee dispute or legal malpractice action, provided that the lawyer adequately explains the provisions to the client. In its attached report, a majority of the ACPE has recommended that the Court reconsider permitting lawyers to include provisions in their retainer agreements that require the client to arbitrate future fee disputes or legal malpractice actions. Should the Court determine not to
reconsider, the full ACPE included in its report both proposed further
guidance on lawyers’ disclosure requirements and suggested uniform
language intended to ensure that lawyers adequately explain any such arbitration provisions to clients.
The Court requests comments on the ACPE report and recommendations by March 23, 2022. Comments should be sent to:
Advisory Committee on Professional Ethics
Attention: Carol Johnston, Committee Secretary
Richard J. Hughes Justice Complex
P.O. Box 970
Trenton, NJ 08625-0970
NEW BRUNSWICK – The New Jersey State Bar Association urged the Judiciary to take a holistic and comprehensive approach in the effort to reduce bias in the jury selection process to ensure defendants in criminal cases face a more fair and representative jury.
NJSBA President Domenick Carmagnola delivered a powerful speech to the Judiciary’s Judicial Conference on Jury Selection held last week. He said it is critical to collect and examine data, as well as remain open-minded and thoughtful in the path to reform the system for the better, especially for Black criminal defendants who, in New Jersey, are incarcerated 12 times more often than their white counterparts – the highest disparity in the nation.
“We believe this conversation and effort should be expansive, thoughtful, and comprehensive in its focus on rooting out bias – both implicit and explicit. The pursuit of a representative justice system, one that all of our citizens can trust and believe in – and be proud of – requires a complex, deep dialogue in order to determine the best ways to rid our system of the systemic and harmful presence of implicit bias and prejudice in jury selection. … We sincerely hope these matters are not pre-ordained and that this is the start of a meaningful journey to reform and improve our system of justice,” he testified. “Action for the sake of action is not the answer, and the wrong action could damage our justice system significantly and have dire consequences for the lives and the liberty of participants in it. We agree that this is the time to act – but we must do so with the goal of getting it right… An appropriate starting point is the means which the pool of jurors is created; greater diversity can most immediately be achieved by the expansion of that pool, and by an examination of the persons who are excused from jury duty, as the Supreme Court required in Dangcil. A critical area of study should be the voir dire process and how courts address challenges, both for-cause and peremptory. Reducing or eliminating peremptory challenges, which have long been viewed as the only tool available to Black and other criminal defendants of color to ensure unbiased juries, should certainly not be viewed as the only available mechanism when, as we have heard, and as we discuss in our interim report, other means achieve these essential goals.”
Read the full remarks here or watch them here.
Carmagnola’s comments were amplified by the over 20 affinity and county bar associations that joined in support of the NJSBA Working Group on Jury Selection Interim Report, which was submitted to the Judiciary in advance of the Judicial Conference.
U.S. District Judge James E. Boasberg We are accustomed to the idea that attorney discipline is the province of the state where we took th…
Personal passion, zealous loyalty to a cause does not justify litigation. RPC 1.1 Competence demands “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” It is failure to heed that principle that led federal District Judge James E. Boasberg to refer Minnesota lawyer Erick G. Kaardal to the District’s Committee on Grievances. Boasberg had dismissed a suit brought by Kaardal, a Minnesota lawyer, on behalf of an ad hoc group called Wisconsin Voters Alliance. The case challenged the lawfulness of the election of Joseph R. Biden as President of the United States.
[Issue date: August 2021]
Is a lawyer, who is licensed in one or more jurisdictions but practices law remotely from another jurisdiction where the lawyer
resides and is not licensed, engaged in the unauthorized practice of law?
A lawyer who is not licensed in California, and who does not advertise or otherwise hold himself or herself out as a licensed
California lawyer, does not establish an office or other systematic or continuous presence for the practice of law in
California, and does not represent a California person or entity, but is merely physically present in California while using
modern technology to remotely practice law in compliance with the rules of the jurisdiction where the lawyer is licensed,
should not be held in violation of California’s Unauthorized Practice of Law (“UPL”) rule and laws, specifically California
Rules of Professional Conduct (“CRPC”) Rule 5.5, or the State Bar Act, Business & Professions (“B&P”) Code §§6125-6126.
If such a lawyer does represent a California person or entity, whether the lawyer violates the UPL rule and laws will depend
on the nature of the representation, whether the representation complies with the regulations of the jurisdiction where the
lawyer is licensed, the role of other California lawyers in the representation, and other factors relevant to whether the
California client is protected consistent with the purpose of the UPL rule and laws.
A lawyer who is licensed to practice law in California, but who resides in another jurisdiction where the lawyer is not licensed
while continuing to remotely practice law under the lawyer’s California license, must adhere to California’s rules and law as
required to maintain a California law license and must also comply with the applicable regulations of the jurisdiction where
the lawyer resides but is not licensed. CRPC Rule 5.5(a); see also ABA Model Rule 5.5(a). A California lawyer who fails to
comply with that jurisdiction’s UPL regulations could be at risk for criminal and/or civil liability and could also be at risk for
discipline for violation of CRPC Rule 5.5(a).
California Rules of Professional Conduct, rule 5.5. Business and Professions Code sections 6125, 6126.
Thanks to Alberto Bernabe for the tip:
A lawyer may passively invest in a law firm that includes nonlawyer owners (“Alternative Business Structures” or “ABS”) operating in a jurisdiction that permits ABS entities, even if the lawyer is admitted to practice law in a jurisdiction that does not authorize nonlawyer ownership of law firms. To avoid transgressing Model Rule 5.4 or other Model Rules and to avoid imputation of conflicts under Model Rule 1.10, a passively investing lawyer must not practice law through the ABS or be held out as a lawyer associated with the ABS and cannot have access to information protected by Model Rule 1.6 without the ABS client’s informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction.
Not The Onion
Ethics Opinion 1225 – New York State Bar Association
Topic: Counseling clients engaged in recreational marijuana business; accepting partial ownership of recreational marijuana business in lieu of fee; personal use of recreational marijuana.
By Bruce Green (Fordham) and Rebecca Roiphe (New York Law)
Washington Post – June 27, 2021
From the digest:
In representing a client with diminished capacity, a lawyer must sometimes make difficult judgments relating to the client’s capacity. Provided that such judgments are informed and disinterested, they should not lead to professional discipline.
When the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek the client’s informed consent to take protective measures. If the client cannot or does not give informed consent, the lawyer may be unable to protect the client against harm. A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper.
Source: OTHERWISE: NJ: Non-Legal Companies Offering Legal Services to Customers Engage in Unauthorized Practice; Lawyers Providing Legal Services to Company’s Customers Violate RPCs – Joint UPL/ACPE Opinion – UPL Opinion 58/ACPE Opinion 740 –
Two Committees of the New Jersey Supreme Court have barred a non-lawyer owned company that “matches” clients to lawyers who will represent them regarding traffic violations. The Advertising Committee itself has disciplinary authority and the Advisory Committee on Professional Ethics published opinions compel compliance by any attorney practicing in the state, subject only to discretionary review by the Court itself. – GWC
A Joint Opinion of two committees of the Supreme Court of New Jersey sharply cautions lawyers regarding paying marketing companies for “referrals” of clients. The issue before the two committees Advertising and Ethics Advisory involves marketers who “price referrals” based not on advertising costs but on the potential lucrativeness of the case leads provided.
Unlike bar association opinions which provide guidance, the two New Jersey Committees carry the authority of the court – though any bar association or licensed lawyer can petition the Court for review.
IN THE MATTER OF RUDOLPH W. GIULIANI, AN ATTORNEY – PER CURIAM Supreme Court of the State of New York Appellate Division, First Judicial Department…
Supreme Court of the State of New York Appellate Division, First Judicial Department Rolando T. Acosta, P.J., Dianne T. Renwick Sallie Manzanet-Daniels Judith J. Gische Barbara R. Kapnick, JJ. Motion No. 2021-00491 Case No. 2021-00506
In the Matter of RUDOLPH W. GIULIANI (ADMITTED AS RUDOLPH WILLIAM GIULIANI), an attorney and counselor-at law: ATTORNEY GRIEVANCE COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, Petitioner, RUDOLPH W. GIULIANI, (OCA ATTY. REGISTRATION NO. 1080498), Respondent.
The Attorney Grievance Committee moves for an order, pursuant to Judiciary Law §90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.9(a)(5), immediately suspending respondent from the practice of law based upon claimed violations of rules 3.3(a); 4.1; 8.4(c) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0) (Rules of Conduct or RPC).
Respondent was admitted to practice as an attorney and counselor at law in the State of New York on June 25, 1969, under the name Rudolph William Giuliani. He maintains a law office within the First Judicial Department.
For the reasons that follow, we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client.
We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (sometimes AGC or Committee).
Last July a distinguished group of lawyers including ten former Presidents of the D.C.Bar joined together to file a Request for Oversight of their comprehensively detailed demand for an investigation of the conduct while in office of the former Attorney General William Barr. Spurned by the Office of Disciplinary Counsel, the group has now appealed to William Kaiser, Chair of the Board on Professional Responsibility to exercise the Board’s oversight authority.
On the first Juneteenth – our national holiday
Via a form letter the D.C. Bar Office of Disciplinary Counsel informed the lawyers – including four former D.C. Bar Presidents that it would not investigate the actions of former Attorney General William Barr. The gravamen of the charges filed is stated concisely by former Massachusetts Attorney General Scott Harshbarger in a post on Just Security. The charges are that in his service to the President rather than the country Barr should be sanctioned
Asserting that the complainants lacked “personal knowledge” the Office of Disciplinary Counsel said it does not “intervene in matters that are being discussed on the national political scene.
Below is a press release by Lawyers Defending Democracy
WASHINGTON, DC – Four former presidents of the DC Bar and twenty-three other distinguished DC Bar members today renewed their 2020 call to the DC Bar’s Office of Disciplinary Counsel to investigate and take disciplinary action against former Attorney General William P. Barr.
, confirming that Attorney Barr and the Department of Justice under his leadership misled Congress and the public about the findings of the Mueller report.
The arguments filed today serve as a supplement to the comprehensive and detailed 37-page ethics complaint the group submitted against the former U.S. Attorney General in July 2020.
In Count I of the original complaint, the signers analyzed the ethical rules violated by Mr. Barr’s communications to Congress and the public concerning the Mueller report. Judge Jackson’s decision, the authors state, confirm the core allegation that, in absolving former President Trump of criminal liability for obstructing justice upon receiving the Mueller Report last year, Mr. Barr repeatedly engaged in dishonest and deceitful conduct. This latest rebuke of Mr. Barr follows similar conclusions reached by Judge Reggie Walton in another case last year.
The original complaint is believed to be the first time that former DC Bar Presidents and other bar leaders have ever united to file an ethics complaint against an Attorney General.
Andrea Ferster, a former DC Bar President and a signer, stated:
“When it is the country’s chief law enforcement official whose conduct two federal judges independently describe as ‘misleading,’ ‘distorted,’ ‘disingenuous’ and ‘lacking in candor,’ the integrity of the legal profession requires holding him accountable.”
Gershon (Gary) Ratner, the lead signer, co-founder of Lawyers Defending American Democracy and a former HUD Associate General Counsel for Litigation, continues:
“When lawyers’ gross ethical misconduct goes undisciplined, we give permission for others to do the same. As a self-regulating profession, we lawyers must show the public that this is not how lawyers of any kind, much less those in positions of power, may behave.”
In urging the Bar to take action, the submission today concludes:
“The evidence here establishes that the highest law enforcement officer of the country misled the Congress and the public by blatant and cynical misuse of his office. . . . [T]he abuse of office by Mr. Barr and his subordinates is a critical test of the legal profession’s ability to regulate itself. If Mr. Barr’s misconduct is ignored or otherwise swept under the rug, the public may justly conclude that the powerful and connected are above the law.”
Today’s supplemental letter is being filed with the Office of Disciplinary Counsel, District of Columbia Court of Appeals. The letter is published by Lawyers Defending American Democracy and can be viewed online here.
The astute former prosecutor who tweets as @legalnerd observes that there are serious issues to be raised on appeal. Prominent among them, in my mind, are the refusal to move the trial from Minneapolis where jurors might feel pressured by the prospect of riots or social disapproval whether they acquitted or convicted; prejudicial publicity via the publicly announced $27 million settlement of civil claims by George Floyd’s family. Such arguments are not frivolous. They will fuel those unwilling to accept the conviction as just.- GWC