by Steve Lubet (Northwestern Law School)
This fascinating Illinois State Bar Ethics Opinion 17-01 (click through for link) presents this question under the state’s RPC 1.6(c)which mandates disclosure “to the extent the lawyer reasonably believes necessary to prevent death or substantial bodily harm”. :
The inquiring attorney has a client who is addicted to heroin and opioids, and also takes cocaine, marijuana and methadone. The client is arrested for possession of a controlled substance, and appears severely impaired during court hearings, but remains silent before the Judge, allowing the attorney to do the speaking. The client is unable to stop consuming heroin and continues to be in violation of bond conditions.
In essence the bar committee finds insufficient immediacy of harm but suggests that in appropriate circumstances RPC 1.14 Diminished Capacity may allow the lawyer the ability to take protective steps.
Jacoby & Myers, LLP was one of the first law firms to employ large scale consumer-oriented advertising. Their slogan “It’s about time” promised efficiencies and effectiveness. However the firm’s growth stagnated as the P.C. transformed the practice of law, making it much less labor-intensive.
In hope of raising capital the firm, according to the Second Circuit’s precis, “challenge(d) the constitutionality of a collection of New York regulations and laws that together prevent for‐profit law firms from accepting capital investment from non‐lawyers. The J&M Firms allege that, if they were allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more clients, including clients who might otherwise be unable to afford their services. By impeding them from reaching this goal, the J&M Firms contend, the state has unconstitutionally infringed their rights as lawyers to associate with clients and to access 18 the courts—rights that are grounded, they argue, in the First Amendment.
The Southern District of New York’s Judge Lewis A. Kaplan dismissed the complaint, concluding that the plaintiffs failed to state a claim for violation of any constitutional right. The Second Circuit panel agreed in Jacoby& Myers v. The Presiding Justices. It is a decision that is a major blow to those who hoped to put a chink in the wall that bars U.S. firms from – like British and Australian firms – bringing on non-lawyer equity shareholders.
The panel (Lynch, Carney and Hellerstein) declared that “even if such rights as they claim were to be recognized, the challenged regulations withstand scrutiny because they are rationally related to a legitimate state interest. We agree that under prevailing law the J&M Firms do not enjoy a First Amendment right to association or petition as representatives of their clients’ interests; and that, even if they do allege some plausible entitlement, the challenged regulations do not impermissibly infringe upon any such rights.“
The issues are thoughtfully explored by Prof. Alberto Bernabe on his Professional Responsibility Blog – below. – gwc
Professional Responsibility Blog: Court of Appeals for the Second Circuit rejects argument that rules that ban lawyers from raising capital from non lawyers are unconstitutional
by VINCENT CALARCO
Closing the doors on a law firm includes much more than just locking the door behind you. “Dissolution” means the process of terminating the law firm’s existence as a legal entity. The District of Columbia Bar recently issued an opinion that discusses the multiple rules of professional conduct come into play when considering the ethics involved in dissolving a law firm.
After the members of the firm decide to dissolve the firm, the next step is to promptly notify the firm’s clients. Timing is important because, after dissolution, the law firm no longer represents its clients. Notice of the dissolution should also be sent to opposing counsel and the tribunal.
During the dissolution period, lawyers must continue to diligently represent and communicate with clients while facilitating the client’s choice of counsel going forward and where appropriate, properly disposing of client files, funds, and any property.
Under Rule 1.16(d), if a particular lawyer and his client will be terminating their relationship then the lawyer is required to “take timely steps to the extent reasonably practicable to protect the client’s interests” which include surrendering property and papers to the client, allowing time for the client to find other counsel and other considerations.
To read the full opinion, click here.
Fox News contributor Andrew Napolitano, a former New Jersey Superior Court judge, recently claimed on television that former President Barack Obama enlisted the British intelligence services to wiretap Donald Trump when Trump was running for president.
Attorneys say this unverified assertion could cause Napolitano to face ethics charges, though the burden of proof to show he violated ethics rules would likely be steep and the potential punishments relatively minor.
Lawyers who focus on attorney ethics say anyone wanting to pursue an ethics complaint against Napolitano would have to prove the former judge lied on purpose and would have to overcome his First Amendment free speech protections.
Napolitano quit the bench in 1995 after a dispute with the New Jersey Supreme Court over his right to earn outside income, but is still licensed to practice in New Jersey and New York.
Fox News, according to media reports, removed Napolitano on March 16, after he claimed, citing unnamed sources, that the U.K.’s Government Communications Headquarters, at Obama’s request, bugged Trump’s communications.
Napolitano’s allegations were cited by the Trump administration as evidence that Obama was behind a wiretapping scheme. In a rare public statement, GCHQ flatly denied Napolitano’s claim, stating: “Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct ‘wiretapping’ against the then President Elect are nonsense. They are utterly ridiculous and should be ignored.”
Fox News later issued a statement saying it could not confirm Napolitano’s assertions, and took him off the air.
To explain how Napolitano could face trouble, attorney ethics mavens on both sides of the Hudson River cited Rule 8.4(c) of the New York and New Jersey Rules of Professional Conduct, both of which state that lawyers and firms “shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”******
1. Conflict of Interest and Informed Consent
To avoid a conflict of interest, a lawyer needs to be informed client consent to engage in substantive job negotiations with a law firm that is adverse to the client. Likewise, hiring firms must avoid serious job talks with opposing counsel unless its own client consents. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.
North Carolina Rule of Professional Conduct 1.7 forbids a lawyer from representing a client if the lawyer’s own interests may materially limit the client’s representation unless the lawyer reasonably believes he or she can provide competent and diligent representation and the client gives informed consent, confirmed in writing. N.C. Rules of Prof’l Conduct, Rule 1.7(b)(2) (2003). This type of conflict may arise when a lawyer has discussions about possible employment with a client’s opponent or a law firm representing the opponent. N.C. Rules of Prof’l Conduct, Rule 1.7, cmt. 10.
2. Substantive Discussion or Negotiation
While the exact point at which a lawyer’s own interest may materially limit his representation of a client may vary, the ethics committee advised substantive discussions and negotiations materially limit the lawyer’s representation of a client. Similarly, The Restatement (Third) of the Law Governing Lawyers advises that once the discussion of employment has become concrete and the interest is mutual, the lawyer must promptly inform the client. Restatement (Third) of the Law Governing Lawyers: A Lawyer’s Personal Interest Affecting the Representation of a Client, § 125, cmt. d. (2000).
The ethics committee relied on the ABA definition of “substantive discussion”, which “entails a communication between the job-seeking lawyer and the hiring law firm about the job-seeking lawyer’s skills, experience, and the ability to bring clients to the firm; and the terms of association.” ABA Formal Ethics Op. 96-400 (1996). To find a “substantive discussion,” the ethics committee opined that there must be a discussion or negotiation that is substantive. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.
The committee further provided examples as to what constitutes a “discussion” and what is “substantive.” “Sending a resume blind to a potential employer is not a ‘discussion.” Id. “Speaking generally with a colleague at a social event about employment opportunities is not ‘substantive.’” Id.
To read the full opinion, click here.
When he was invited to speak at the conservative Claremont Institute’s annual fundraising dinner Justice Samuel Alito properly insisted that the ticket price could not exceed the cost of the meal. But the Institute offered on its event web page another opportunity to donate: at the $10,000 level. Prof. Lubet asks if Justice Alito violated the Code of Judicial Conduct – which guides Supreme Court Justices only to the degree that the Justice deems appropriate. – gwc
by Prof. Steven Lubet (Northwestern University Law School)
***There has been considerable pressure on the Supreme Court to adopt its own code of conduct. Legislation to that effect has been repeatedly introduced in Congress, which would, in the words of one sponsor, require the court to announce “clear, written rules that establish standards by which justices’ behavior can be guided and assessed by both themselves and the American people.”
But no code—whether used only for guidance or accepted as binding—can substitute for a justice’s own vigilance. It is impossible to know how many $10,000 donors joined the Claremont Institute’s “Host Committee” for the purpose of honoring Justice Alito, but even one would be too many. The prohibition on fundraising is long-standing principle of judicial ethics, and it is important that it be respected in both word and deed.