Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement – Georgetown – forthcoming

The rhetoric of judicial impartiality, of non-partisanship, of separation of powers dominates the language of judges – and of lawyers and acolytes in the media….

Source: OTHERWISE: Chafetz: Nixon/Trump: Strategies of Judicial Aggrandizement – Georgetown – forthcoming

Chafetz’s forthcoming Strategies of Judicial Aggrandizement is a rare treatment of the courts the way others are treated.  We are accustomed to the charge that bureaucracies try to increase their power, that legislatures overreach, and that Presidents tend toward the imperial (thank you Arthur Schlesinger, Jr.).  But rarely does “judicial aggrandizement” get any attention.

Sherrilyn A. Ifill: Lawyers Enabled Trump’s Worst Abuses – The New York Times

We have arrived at a time of reflection.  When Barack Obama was elected we felt, just perhaps, we have moved decisively toward that promised…

Source: OTHERWISE: Sherrilyn A. Ifill: Lawyers Enabled Trump’s Worst Abuses – The New York Times

NAACP LDF President Sherrilyn A. Ifill looks to South Africa’s  Truth & Reconciliation Commission as a model for use to follow – to look at our profession’s failures.  – GWC

Arizona Supreme Court opens door to non-lawyer ownership of law firms

Source: OTHERWISE: Arizona Supreme Court opens door to non-lawyer ownership of law firms 

The Arizona Supreme Court – effective January 1 – has authorized non-lawyer ownership of law firms and other “Alternative Business Structures” including licensed paraprofessionals who can complete forms and represent clients.

The ABA Journal reports that Arizona Vice Chief Justice played a key role with David Byers of the state Administrative Office of the Courts in examining how legal services are delivered.  The task force of the Arizona Supreme Court reported in October 2019:  It recommended that the Court

Eliminate Arizona’s ERs 5.4 and 5.7 and amend ERs 1.0 through 5.3 to remove the explicit barrier to lawyers and nonlawyers co-owning businesses that engage in the practice of law while preserving the dual goals of ensuring the professional independence of lawyers and protecting the public.

Editorial: Limit mandatory arbitration in retainer agreements – NJ Law Journal

The New Jersey Supreme Court recently ruled that a lawyer may provide for mandatory arbitration  even of malpractice claims – in its retainer agreement.  But it must explain to its client the advantages and disadvantages of the choice.  The court referred the issue to is Advisory Committee on Professional Ethics – on which I serve, as I do on the amicus committee of the State Bar, and the Editorial Board of the New Jersey Law Journal half of whose members recused because they are involved one way or another in the issue which is a truly hot button issue in the New Jersey Bar.

The Law Journal Editorial Board calls for independent representation of clients in such matters.  The ACPE has solicited comments from the Bar.  It may be a bumpy ride. Published Opinions of the ACPE are binding – but subject to discretionary review by the Court itself.

  • GWC

Source: Torts Today: Editorial: Limit mandatory arbitration in retainer agreements – NJ Law Journal

 

“We believe that requiring a prospective client, not independently represented, to give up the right to choose the forum of dispute resolution at the outset of a relationship is detrimental to the client’s interest and should be banned. If, and when, a dispute arises between lawyer and client, the respective parties may agree that it is in their individual interest that the dispute be arbitrated rather than fought in court. Presumably, at that time, the client will have secured new counsel who can, independently, advise the client of the wisdom of resolving the dispute in one forum or another.

We cannot conceive of a lawyer independently consulted by a client about the wisdom of signing a mandatory arbitration clause advising that client to forfeit the choice of forum for dispute resolution at the outset of a representation. Some courts require a client to get independent advice before agreeing to mandatory arbitration in a retainer agreement. Others ban it outright. The ABA allows such a provision provided “the advantages and disadvantages are discussed.”

Lawyers – en masse – call for Giuliani to be disciplined, suspended

New York Supreme Court Appellate Division First Department It began with the New York State Bar Association announcing an inquiry into wh…

Source: OTHERWISE: Lawyers – en masse – call for Giuliani to be disciplined, suspended

 

It began with the New York State Bar Association announcing an inquiry into whether it should expel the former United States Attorney, Mayor of New York, and personal counsel to a President Rudy Giuliani.  The Trump confidant had fallen into disrepute as he played a role in the sixty failed lawsuits brought by the Trump campaign to somehow undermine the results of an election which the sitting lost by over seven million votes.  The movement gained momentum and gravity after the former prosecutor at the now notorious January 6 White House rally warmed up the soon to be riotous mob by declaring ““Let’s have trial by combat.””

Donald Trump’s narrow margins in a handful of states presented a theoretical path to snatch an electoral college victory from a popular vote defeat. Giuliani was coordinator of unsuccessful electoral challenges in a dozen states, according to Democracy Docket which itself coordinated Democratic Party defenses.  Things quickly went badly for Giuliani;s efforts as even conservative judges spurned the efforts to discount votes.  In a key state – Pennsylvania District Judge Matthew Brann, a former GOP official, repudiated the action saying

…this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.

Brann was quickly affirmed by a conservative panel of the Third Circuit which wrote  Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.” 

Criticism mounted but it was the January 6 rally which pushed things off a cliff.  Two carefully crafted and detailed letters to New York disciplinary authorities in the First Department of the Appellate Division of New York Supreme Court have demanded action against Giuliani.  The first was filed by former Massachusetts Attorney General and Common Cause President Scott Harshberger on behalf of Lawyers Defending American Democracy, Inc.  The LDAD complaint, co-signed by dozens of prominent lawyers, former prosecutors and judges has now garnered over 4,000 signatures.  Citing factually and legally groundless litigation to invalidate millions of votes Harshberger et al. call for Giuliani to be suspended while the “Committee… investigates”.

Another complaint, filed the next day by Ronald C. Minkoff, of New York, and co-signed by dozens of prominent lawyers and academics, is brought on behalf of Michael Miller, a past President of both the New York State Bar Association and the New York County Lawyers Association.  The carefully drafted and comprehensive complaint centers on the Pennsylvania action and the January 6 “attempted insurrection”. It calls for unspecified discipline against Giuliani, a New York attorney for KEEP READING:

OTHERWISE: Lawyers – en masse – call for Giuliani to be disciplined, suspended

 

OTHERWISE: Amicus Cases – NJ State Bar Association – 2015 – 2020

 

Source: OTHERWISE: Amicus Cases – NJ State Bar Association – 2015 – 2020

The New Jersey State Bar Association – the largest private organization of lawyers in the State – frequently appears (often by invitation) before the New Jersey Supreme Court on issues of particular concern to the Court, the Bar, and the public.  I am proud to be a member of the amicus committee and to have briefed and argued for the NJSBA in two cases (Kernahan and Chaparro Nieves) in the past couple years before the State Supreme Court.  
This body of work illustrates a bar association which takes to heart its role as both advocate for the interests of lawyers, and for defending the principle of access to justice. – GWC

California: Duty to Prospective client – Proposed Formal Opinion Interim No. 17-0003

The California State Bar has solicited comment on its proposed Formal Opinion No. 17-0003 regarding duties of confidentiality to and avoidance of conflicts of interest to prospective clients.  The deadline for comment is March 22, 2021. – gwc

Proposed Formal Opinion Interim No. 17-0003 [Duty to Prospective Client]

ISSUES: 
1. When a prospective client has provided confidential information to an interviewing lawyer, may the interviewing lawyer disclose that information or use it to the prospective client’s disadvantage? 
2. When the interviewing lawyer has received material confidential information from a prospective client, under what conditions is ethical screening available so that other lawyers in the lawyer’s law firm may represent other clients who are adverse to the prospective client in the same or substantially related matters? 
3. To what extent can a prospective client give advanced informed written consent to permit other lawyers in an interviewing lawyer’s law firm to be adverse to a former prospective client in the same or substantially related matter in circumstances where the interviewing lawyer is screened from the representation but the precondition for screening in rule 1.18(d) has not been met because the interviewing lawyer did not take the “reasonable measures” required by that rule?

Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68 – The New York Times

Any discussion of Deborah Rhode’s work and impact inevitably is a flood of superlatives. We are fortunate that Clay Risen of the New York Times took the time to tell the story of a woman who was a powerful debater, teacher, writer, and thinker.  A high school classmate of Merrick Garland, the Biden-Harris administration will unfortunately be unable to turn to her for the passion and powerful intellect and integrity she brought to her work in legal ethics.   The field was little heeded until the Watergate debacle put prominent lawyers like White House counsel John Dean in the dock, and Attorney General John Mitchell in jail.

Deborah Rhode, perhaps more than any other legal scholar changed that. – GWC

Source: OTHERWISE: Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68 – The New York Times

By Clay Risen

Deborah L. Rhode, a law professor who transformed the field of legal ethics from little more than a crib sheet for passing the bar exam into an empirically rich, morally rigorous investigation into how lawyers should serve the public, died on Jan. 8 at her home in Stanford, Calif. She was 68.
Her husband, Ralph Cavanagh, confirmed her death but said that the cause had not yet been determined.
With 30 books and some 200 law review articles to her name, Professor Rhode, who spent over four decades teaching at Stanford, was by far the most-cited scholar in legal ethics, with a work ethic that astounded even her hard-charging colleagues.
“She was done with all her chapters before I started mine,” said David J. Luban, a law professor at Georgetown and one of her co-authors on “Legal Ethics,” a casebook now in its eighth edition.

Lawyers’ response to online comments sharply limited: ABA Formal Opinion 496

Source: OTHERWISE: Lawyers’ response to online comments sharply limited: ABA Formal Opinion 496

Lawyers’ ability to respond to online criticism is sharply limited by both confidentiality and prudential concerns according to the ABA’s newly issued Formal Opinion.  The opinion largely tracks the opinions of bar associations, and official ethics committees.
One of the closer questions is what constitutes a controversy between attorney and client, relieves the lawyer of certain strictures of confidentiality under RPC 1.6.  The ABA Committee opines:
even if an online posting rose to the level of a controversy between lawyer and client, a public response is not reasonably necessary or contemplated by Rule 1.6(b) in order for the lawyer to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Comment [16] to Rule 1.6 supports this reading explaining, “Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes stated.”
It is, however, a noteworthy suggestion that

A lawyer may request that the host of the website or search engine remove the post. This may be particularly effective if the post was made by someone other than a client. If the post was made by someone pretending to be a client, but who is not, the lawyer may inform the host of the website or search engine of that fact. In making a request to remove the post, unless the client consents to disclosure, the lawyer may not disclose any information that relates to a client’s representation or that could reasonably lead to the discovery of confidential information by another, but may state that the post is not accurate or that the lawyer has not represented the poster if that is the case.

= GWC

 New York State Bar Association Launches Historic Inquiry Into Removing Trump Attorney Rudy Giuliani From Its Membership – New York State Bar Association

Source: OTHERWISE: New York State Bar Association Launches Historic Inquiry Into Removing Trump Attorney Rudy Giuliani From Its Membership – New York State Bar Association

By Susan DeSantis

24/09/2019 Rudolph Giuliani, Ex-Prefeito de Nova York

The New York State Bar Association (NYSBA) strongly condemned the violent uprising that occurred at the U.S. Capitol on Jan. 6, orchestrated by individuals bent on subverting the will of the voters by disrupting the certification of the 2020 presidential election results.

Thankfully, Congress overcame this assault and fulfilled its constitutional responsibility in certifying the Biden-Harris victory. However, we must address the root cause of this abhorrent incident, the blame for which lies first and foremost with President Donald Trump.

But the president did not act alone. Hours before the angry mob stormed the Capitol walls, Trump’s personal attorney, Rudolph Giuliani, addressed a crowd of thousands at the White House, reiterating baseless claims of widespread election fraud in the presidential election and the Georgia U.S. Senate runoffs.

“If we’re wrong, we will be made fools of, but if we’re right a lot of them will go to jail,” Mr. Giuliani said. “Let’s have trial by combat.”

 Investigate and Prosecute | New Jersey Law Journal

 The New Jersey Law Journal Editorial Board today calls for impeachment of Donald Trump and for incoming A.G. Merrick Garland to “relentlessly investigate and prosecute” those responsible for the near catastrophe at the Capitol on January 6.

Disclosure: I am a member of the Board

Source: OTHERWISE: Investigate and Prosecute | New Jersey Law Journal

 Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger.

And what about the Foley & Lardner lawyer who was on the call with him?

Witness or defendant?

Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger. By Rick Hasen (UCLA, Election Law Blog)

Source: OTHERWISE: Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger.

Lawyers Working Remotely – ABA issues Formal Opinion 495

 

Source: OTHERWISE: Lawyers Working Remotely – ABA issues Formal Opinion 495

American Bar Association
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
Formal Opinion 495 December 16, 2020

 

Lawyers Working Remotely Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules

NJ Supreme Court: Attorney-Client arb agreements OK – BUT advantages and disadvantages must be explained

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Source: OTHERWISE: NJ Supreme Court: Attorney-Client arb agreements OK – BUT advantages and disadvantages must be explained

The New Jersey Supreme Court in Delaney v. Sills (A30-019) has OK’d retainer agreements that provide that all disputes between attorney and client shall be subject to arbitration.  But the court emphasizes that the fiduciary nature of the attorney-client tie requires candid explanation to the client of the advantages and disadvantages of the arbitral forum.

See discussion at link to my blog above.

As a member of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics I look forward to fulfilling the court’s request to us for advice on how to implement these principles.

  • GWC

U.S. District Court Judge enjoins Pennsylvania from enforcing Bar rule with broad lawyer anti-discrimination prohibitions | Lawyer Ethics Alert Blogs

By Joseph Corsmeier

Hello everyone and welcome to this Ethics Alert, which will discuss the recent U.S. District Judge for the District of Eastern Pennsylvania’s opinion and preliminary injunction prohibiting enforcement of a disciplinary rule broadly prohibiting discrimination by lawyers as violative of the free speech component of the First Amendment of the U.S. Constitution.  The case is Greenburg v. Haggerty, U.S. District Court for the Eastern District of Pennsylvania, Case No. 20-3822.  The opinion and injunction is here:  https://www.courtlistener.com/recap/gov.uscourts.paed.574138/gov.uscourts.paed.574138.29.0.pdf  from www.courtlistener.com).

Source: U.S. District Court Judge enjoins Pennsylvania from enforcing Bar rule with broad lawyer anti-discrimination prohibitions | Lawyer Ethics Alert Blogs

The opinion and injunction states:

There is no doubt that the government is acting with beneficent intentions.  However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.

The irony cannot be missed that attorneys, those who are most educated and encouraged to engage in dialogues about our freedoms, are the very ones here who are forced to limit their words to those that do not “manifest bias or prejudice.” Pa.R.P.C. 8.4(g). This Rule represents the government restricting speech outside of the courtroom, outside of the context of a pending case, and even outside the much broader playing field of “administration of justice.” Even if Plaintiff makes a good faith attempt to restrict and self-censor, the Rule leaves Plaintiff with no guidance as to what is in bounds, and what is out, other than to advise Plaintiff to scour every nook and cranny of each ordinance, rule, and law in the Nation.

“Trashed in an Online Review? Responding Is OK, But Don’t Say Too Much,” NJ Supreme Court Advisory Committee 

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics has said – in a binding opinion – that lawyers slandered in an online review are limited to a denial.  Only if a definite controversy arises – e.g. in a malpractice suit or disciplinary action.  While the Committee’s opinions are subject to discretionary review by the Supreme Court itself the Committee’s published opinions bind all members of the bar.  An unusual aspect of New Jersey law is that any member of the bar and any bar association has standing to petition the state’s high court for review.

Thus a lawyer who believes the First Amendment them to file a defamation action disclosing facts about the representation would have standing to petition the Supreme Court which, in its discretion, may overturn or modify the ACPE opinion.  – GWC

Source: ACPE – FW: “Trashed in an Online Review? Responding Is OK, But Don’t Say Too Much,” NJLJ, 12-10-20 

Lawyers who receive negative online reviews from clients are free to post a response, but must avoid disclosing confidential client information, according to an opinion by New Jersey’s Advisory Committee on Professional Ethics.

Lawyers responding to online reviews posted by clients cannot reveal “information relating to representation,” except where that information is “generally known” or the client consents to the release of such information, the committee said in ACPE Opinion 738 

While lawyers have some latitude in discussing clients’ cases publicly in the context of defending a malpractice suit or disciplinary complaint against the lawyer, the same freedom does not apply to an “informal controversy” over the posting of a negative online review, the committee said in its Opinion 738, made public Wednesday.

The committee offered a suggested response for such situations, which it said complies with New Jersey lawyers’ ethical obligations: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.” The statement was suggested by the Pennsylvania Bar Association.

New Jersey’s committee took up the issue of responding to negative online reviews in response to several requests to the committee and its ethics assistance hotline for guidance. Lawyers said former clients and former prospective clients have posted false, misleading and inaccurate statements about them.

LAW ENFORCEMENT LEADERS CALL ON STATE BAR TO CREATE NEW ETHICS RULE TO #CURETHECONFLICT OF INTEREST BETWEEN PROSECUTORS AND POLICE UNIONS – George Gascón Democrat for L.A. District Attorney

UPDATE:  The letter submitted to the State Bar by recently elected San Francisco District Attorney  Chesa Boudin, a former public defender…

Source: OTHERWISE: LAW ENFORCEMENT LEADERS CALL ON STATE BAR TO CREATE NEW ETHICS RULE TO #CURETHECONFLICT OF INTEREST BETWEEN PROSECUTORS AND POLICE UNIONS – George Gascón Democrat for L.A. District Attorney

A letter submitted to the State Bar by recently elected San Francisco District Attorney  Chesa Boudin, a former public defender, two other county prosecutors and his predecessor George Gascon  called on the State Bar (a governmental entity) to adopt a rule or issue a formal ethics opinion to “explicitly preclude elected prosecutors-or prosecutors seeking election-from seeking or accepting political or financial support from law enforcement unions.” It was the subject of today’s Zoom public hearing before the  Committee on Professional Responsibility and Conduct.

Nadine Taub, Early Leader in Women’s Rights Law, Dies at 77 – The New York Times

 

Source: OTHERWISE: Nadine Taub, Early Leader in Women’s Rights Law, Dies at 77 – The New York Times

Nadine Taub was a brilliant lawyer who with Ruth Ginsburg was among the first to litigate women’s rights cases.  She began that work in 1971 at Rutgers where she was recruited by Ruth Ginsburg to found the Women’s Rights Litigation Clinic.  I tell the story of that era in my essay People’s Electric – Engaged legal Education at Rutgers Newark in the 1960s and 1970s.
I was privileged to co-author a brief with her in Collins v. Union County Jail (1997).  A gay prisoner had been assaulted by a guard.  We wrote for amicus curiae National Organization for Women and helped to overturn the New Jersey precedents that one could not recover for sexual assault unless there had been physical injury. – gwc

 New Jersey Supreme Court seeks Comment on the Duty of Confidentiality and Wrongful Convictions

Charles Toutant of the New Jersey Law Journal reports: The New Jersey Supreme Court is seeking input on a proposed rule change that would  , if adopted, would change RPC 1.6 to create an exception to the duty to keep client information confidential if that information demonstrates that an innocent person was wrongly convicted of a crime with significant penal consequences. The judiciary is accepting written comments through June 26 on the proposal made public Wednesday. Click through below for a link to the report of the divided Committee.

Source: OTHERWISE: New Jersey Supreme Court seeks Comment on the Duty of Confidentiality and Wrongful Convictions

Toward the Abolition of Slavery under the Aegis of Islamic Law – The Comparative Jurist

Source: OTHERWISE: Toward the Abolition of Slavery under the Aegis of Islamic Law – The Comparative Jurist

Lawyers have long sought not only to clarify but to improve the law.  So it is with the three great Abrahamic monotheistic faiths – Judaism, Christianity, and Islam  They are religions of the book.  Scripture is a powerful command, but like the United States Constitution adherents and aspirants find themselves impaled on the products of the founding fathers contradictions. In U.S. law it is between the Enlightenment values of the slave-holding signers of  the Declaration of Independence and the protection  and acquiescence in racism and chattel slavery embedded in the Constitution of 1787.  Only Civil War could end it and even so the post civil war Second Founding was only a qualified success.
Similarly Christianity – a dissenters religion founded on lionization of the victim of an unjust execution has (at least since becoming the religion of empire in 314 AD.) tolerated war and capital punishment.  Only in the past few years has the Catechism of the Catholic Church abjured capital punishment.
Evidenced by the practices and justifications claimed by ISIS and Boko Haram  Bernard  Freamon argues that although freeing slaves is lauded in the Quran the practice – particularly in war – is not definitively abjured.   His objective is to spur Islamic scholars and lawyers to develop the foundation in Islamic law for complete abolition,  – GWC
Toward the Abolition of Slavery under the Aegis of Islamic Law – The Comparative Jurist William & Mary Law School
by Bernard Freamon (author of Possessed by the Right Hand, The Problem of Slavery in Islamic Law and Muslim Cultures)