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

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

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

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.”

 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

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.

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

.

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

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.