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

Source: OTHERWISE: “Price lists for client leads” likely violate bar on referral fees: NJ Supreme Court Committees

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.

– GWC

IN THE MATTER OF RUDOLPH W. GIULIANI, AN ATTORNEY – PER CURIAM   Supreme Court of the State of New York Appellate Division, First Judicial Department…

Source: OTHERWISE: Rudy Giuliani suspended by NY Appellate Division

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.

Source: OTHERWISE: Lawyers press D.C. Bar Ethics Board to investigate William Barr

On the first Juneteenth – our national holiday

Source: OTHERWISE: On Our First Juneteenth – the national holiday

Source: OTHERWISE: William Barr: D.C. Bar Disciplinary Counsel Refuses to Investigate

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.

Source: OTHERWISE: Justice Barrett’s moment of conscience – Jackson Women’s Health v. Dobbs

Below is a press release by Lawyers Defending Democracy

Source: Former DC Bar Presidents and Bar Members Renew Call Disciplinary Action against Former AG William Barr in Light of Court Ruling

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.

Their submission today is prompted by the May 3, 2021 opinion of Judge Amy Berman Jackson in CREW v. DOJ

, 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.

Source: OTHERWISE: Minnesota Legal Scholars Weigh In on Aftermath of Chauvin Verdict – Courthouse News Service

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

California State Bar declares RPC 1.1 duty of tech competence, expands RPC 5.4 non-profit fee sharing rules      Rule 1.1 addresses a lawyer duty of technical competence, and 5.4 declares that attorneys fees from a settlement – not simply court-awarded fees – may be shared with a non-profit….

Source: OTHERWISE: California State Bar declares RPC 1.1 duty of tech competence, expands RPC 5.4 non-profit fee sharing rules

Contrary to several other states, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics holds that a lawyer who “cc’s” a client impliedly consents to his/her client receiving any replies directly.  – GWC

Source: OTHERWISE: NJ ACPE Opinion 739: RPC 4.2 – Lawyers Who Include Clients on Group Emails and Opposing Lawyers Who ‘Reply All

She spent seven years and much of her retirement savings to prove that a teenager had been wrongly convicted of murder. 

Source: OTHERWISE: Priscilla Read Chenoweth – lawyer, editor, crusader, dies at 90 – NY Times

Priscilla Read Chenoweth was the most widely read lawyer in New Jersey for many years.  Her weekly precis of new decisions made the New Jersey Law Journal essential reading.  But she was also an impassioned advocate.  A passion she passed on to her daughter Lesley who, with her husband Michael Risinger leads Seton Hall’s Last Resort exoneration project. – gwc

Meet The Voting Rights Heavy-Hitters That Biden Has Picked To Lead DOJ | Talking Points Memo By Tierney Sneed – February 25, 2021 President …

Source: OTHERWISE: Meet The Voting Rights Heavy-Hitters That Biden Has Picked To Lead DOJ | Talking Points Memo

By Tierney Sneed – February 25, 2021

President Biden has chosen for top positions at the Justice Department three advocates who have spent their lifetimes in the civil rights arena and the last four years in particular combatting the Trump-era’s most egregious assaults on democracy.

When then-President Trump put forward judicial nominees who had shown hostility to voting rights, Vanita Gupta organized the civil rights community pushback that helped sink the confirmations of at least two of them.

When the administration stood up a sketchy “election integrity” commission to validate Trump’s false voter fraud claims, Kristen Clarke spearheaded one of the early legal challenges that contributed to the panel’s eventual demise.

And when Trump hijacked the U.S. foreign policy apparatus to smear his 2020 presidential opponent, Pamela Karlan testified in House impeachment proceedings about the implications that gambit had for democracy.

Now all three have been selected for key DOJ positions from which they can revitalize the department’s role in the voting rights space — at a time when the threats to democratic participation are historically daunting.

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.

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

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.

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.”

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