The New Jersey legal community has been roiled by an unpublished – but binding – Appellate Division decision that barred enforcement of the mandatory arbitration provision of a prominent firm’s standard retainer agreement.

In Delaney v. Dickey and Sills Cummis & Gross, P.C., 2019 WL 3982756, a legal malpractice action, plaintiff Brian Delaney claims the retainer agreement used by defendants   violated several RPCs and therefore its provision to arbitrate all disputes arising from the representation should not be enforced. The Chancery Division judge rejected the argument but a three judge panel reversed. Sills has now appealed to the state’s Supreme Court, and Delaney’s lawyer agrees the Court should grant certification….

Source: OTHERWISE: Arbitration clause in legal malpractice claim barred by New Jersey appellate court

The former (GW Bush administration) Inspector General of the National Security Agency on the vulnerability of the lawyers who mis-classifie…

Source: OTHERWISE: Former NSA Inspector General Sees lawyers’ misconduct in reclassifying Trump phone call records

Source: OTHERWISE: Lawyer’s Use of Internet Search Engine Keyword Advertising OK’d by New Jersey Supreme Court’s Advisory Committee on Professional Ethics

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics (ACPE) has issued a binding Opinion 735 Lawyer’s Use of Internet Search Engine Keyword Advertising

The Committee- whose published opinions bind the bar – subject to discretionary appeal –  responded to an inquiry: “asking whether a lawyer may, consistent with the rules governing attorney ethics, purchase a Google Adword℠ or keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. Internet search engine advertising programs permit businesses to purchase certain keywords or phrases; when a person searching on the internet uses those words in the search, the websites of purchasers of the keywords will appear in the search results, ordinarily presented as paid or “sponsored” ads.”  The ACPE found that acceptable but abjured any method that would surreptitiously direct an inquirer from the competitor’s website to the lawyer’s own site.

Knowing that this story will soon disappear from Twitter and the headlines I have gathered key documents, etc. with fall classes in mind.  My suggested question for discussion is “Would you have argued – if your DOJ boss insisted – that soap was not required under the settlement agreement calling for minor immigrants to be detained in “safe and sanitary” facilities?” Click through for the full post. -gwc

Source: OTHERWISE: Safe and sanitary – the limits of advocacy

The court also rejected Defendants’ argument that “soap, towels, showers, dry clothing, or toothbrushes” are not required under the Agreement because the Agreement makes no mention of those items.

Civil Gideon – Right to Counsel in Child Abuse Allegation by Division of Children and Families  Almost fifty years ago the New Jersey Su…

Source: OTHERWISE: Civil Gideon: NJ Court Affords Counsel in Child Abuse and neglect Cases

Almost fifty years ago the New Jersey Supreme Court declared in Rodriguez v. Rosenblatt that an indigent defendant facing any “consequence of magnitude” is entitled to appointed counsel.  From that petty criminal matter the right has been slowly extended in civil matters such as termination of parental rights, jailing and “automatic” suspension of driving privileges for failure to pay child support, suspension of driving privileges, and involuntary civil commitment.  In Division of Children and Families v. L.O. the Appellate Division has extended that right to State Division of Children and Families administrative and judicial actions to substantiate child abuse, and place the defendant on the Child Abuse Registry.

The court considered whether indigent parents and guardians – once notified that an investigation has substantiated them for child abuse or neglect – are entitled to the appointment of counsel when exercising their right to an administrative hearing to challenge that determination.
Because the potential consequences of such administrative proceedings – including permanent listing in the Child Abuse Registry – are of significant magnitude, counsel must be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court, just as that right exists in Title Nine actions commenced in Superior Court.

The court also determined that until such time as the Legislature addresses this constitutional right counsel may be appointed to serve – without compensation – in such matters. Six months ago a Superior Court judges ordered the state to provide counsel to delinquent child support obligors in drivers license suspension cases.  There too funding has not been appropriated.   In this era of No new taxes pledges the Legislature has failed to respond in other instances where the right to counsel has been extended.  The recently elected Democratic Governor and the Democratic majority legislature have often found themselves at odds.  The statewide Office of the Public Defender stands ready – if funded – to provide competent representation.  But I have my doubts about whether the Governor and Legislature will address this problem. – gwc

Source: OTHERWISE: Trump to Justices: Put yourselves in my shoes!

Pursuing their monarchical presidency argument Donald Trump’s lawyers – in their D.C. Circuit brief on appeal in the Mazars accounting subpoena case – make a sort of Golden Rule argument.  Looking ahead to the United States Supreme Court which will soon be confronted with deciding whether  Trump’s accountants must heed a House Oversight Committee subpoena for his financial records.  Put yourselves in my shoes, say Trump’s lawyers to the Justices who have exempted themselves from the Code of Conduct of United States Judges:

[A]lthough “Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income” and the Justices comply with them, the Court has never decided “whether Congress may impose those requirements on the Supreme Court.” **. In short, “the limits of Congress’s power” in this area have “never been tested.” 

Yet replace “President” with “Justices” and the ruling below would, without question, authorize a congressional subpoena for the Justices’ accounting records— even for many years before they joined the Court. There would “be little doubt” that “Congress’s interest in the accuracy of the [Justices’] financial disclosures falls within the legislative sphere.” ***

Whether they are “abiding by the Foreign Emoluments Clause is likewise a subject on which legislation … could be had.” ***. “So, too, is an investigation to determine whether [the Justices have] any conflicts of interest” (even though those laws do not currently apply to them), given that “exposing conflicts” and “shed[ding] light” are “entirely consistent with potential legislation in an area where Congress already has acted.” ***

Finally, the subpoena would be “justified based on Congress’s ‘informing function’” since, according to the district court, Congress has “sweeping authority to investigate illegal conduct of a [Justice] before and after taking office.” ***

Just remember ..The Godfather loves you… NEW: Voicemail of Trump’s lawyer calling Mike Flynn’s attorney for a “heads up” on the Muelle…

Source: OTHERWISE: Just remember – the Godfather loves you…John Dowd to Michael Flynn

Source: Harvard Was Wrong to Dismiss its Dean for Representing Harvey Weinstein | American Civil Liberties Union

June 6, 2019

by David Cole ACLU Legal Director
& Carol Rose, Executive Director, ACLU of Massachusetts

Last month, Harvard College Dean Rakesh Khurana announced that Ronald Sullivan, a professor in the law school, would no longer serve as faculty dean of Winthrop House, a residential dorm at Harvard. Sullivan was the first African American to serve as a faculty dean and had served in that role at Winthrop House for a decade. But when he chose to join the legal team defending Hollywood mogul Harvey Weinstein in his upcoming criminal trial on allegations of sexual assault, his decision sparked protests and sit-ins, as students demanded his ouster as dean. In the end, Harvard caved to the pressure.

The decision sacrificed principles central to our legal system.

The ACLU is committed to fighting sexual assault, in the workplace, the home, on campus, and in the world at large. At the same time, Weinstein, like every person accused of a crime, is presumed innocent in his criminal case unless he pleads or is proven guilty beyond a reasonable doubt. Commitment to that principle, and to the system mandated by our Constitution, means we are equally devoted to the principle that every criminal defendant, no matter how vilified, no matter how innocent or guilty, and no matter how poor or rich, deserves a lawyer. If the latter principle is to be respected, it is essential that society not conflate a criminal defense lawye

Last month, Harvard College Dean Rakesh Khurana announced that Ronald Sullivan, a professor in the law school, would no longer serve as faculty dean of Winthrop House, a residential dorm at Harvard. Sullivan was the first African American to serve as a faculty dean and had served in that role at Winthrop House for a decade. But when he chose to join the legal team defending Hollywood mogul Harvey Weinstein in his upcoming criminal trial on allegations of sexual assault, his decision sparked protests and sit-ins, as students demanded his ouster as dean. In the end, Harvard caved to the pressure.

The decision sacrificed principles central to our legal system.

The ACLU is committed to fighting sexual assault, in the workplace, the home, on campus, and in the world at large. At the same time, Weinstein, like every person accused of a crime, is presumed innocent in his criminal case unless he pleads or is proven guilty beyond a reasonable doubt. Commitment to that principle, and to the system mandated by our Constitution, means we are equally devoted to the principle that every criminal defendant, no matter how vilified, no matter how innocent or guilty, and no matter how poor or rich, deserves a lawyer. If the latter principle is to be respected, it is essential that society not conflate a criminal defense lawyer’s representation with his or her client’s acts.

ACLU lawyers, for example, have successfully represented convicted sex offenders challenging the inhuman and onerous conditions imposed on them after they have served their time. We defend men held at Guantanamo accused of terrorism. We have defended dozens of men on death row who have been found guilty of brutal murders. And we have advocated for the First Amendment rights of Ku Klux Klan members, flag-burners, and Nazis.

These are not easy cases to take on. It should go without saying that we take them not because we support sex offenses, murder, flag-burning, or white supremacy. We do so because we are committed to defending our constitution’s fundamental protections — no matter how vile the actions or views at issue in these cases. Public defenders similarly provide zealous representation to any indigent client, regardless of the underlying allegations, and our criminal justice system depends on their work. Once people begin to confuse a lawyer’s defense of important principles with the defense of despicable acts, it is much more difficult to uphold these principles — at least for those who society is eager to vilify.

Ron Sullivan’s career is a quintessential example of this kind of lawyering. For example, he served as director of the Public Defender Service for the District of Columbia. He has repeatedly advised district attorney’s offices about setting up meaningful conviction integrity programs, and he has represented victims of injustice, including the family of Michael Brown, killed by a police officer in Ferguson, Missouri. In short, Sullivan’s work, more so than most, has served marginalized communities.

DEFEND OUR ABORTION RIGHTS

TAKE THE PLEDGE

Some have alleged that Sullivan was not an effective dean, wholly apart from his controversial representation of Weinstein. The college conducted a “climate survey” at Winthrop House and heard a number of complaints about his deanship. But it is telling that Sullivan was dean for 10 years without any effort to oust him. It was only after he undertook the representation of Weinstein that the students began to protest, the college surveyed the “climate,” and then dismissed him. From all appearances, it was Sullivan’s representation of Weinstein, not his performance as dean, that prompted his dismissal.The Crimson, the Harvard student paper, supported the action, as did several student groups. The student paper editorialized that there is an “incongruity” between “defending Weinstein in his role as defense attorney while simultaneously working to promote a safe and comfortable environment for victims of sexual misconduct and assault in his capacity of faculty dean.” And some have argued that the dismissal as dean is not such a big deal, because Sullivan remains a tenured professor.

But nothing about being a defense attorney makes one unqualified to serve as a dean. Moreover, Sullivan responded to concerns that his representation might affect his role as faculty dean. He set forthmultiple processes and resources for students to bring complaints about sexual assault; made a resident dean, Linda Chavers, a “point person”; and identified multiple other persons who could both receive complaints and counsel students.

The second contention — that Sullivan was simply dismissed as dean, not fired altogether — suggests that it is okay to compromise principle if the harm inflicted is small. But that’s not how principle works. If it were established, for example, that he was dismissed because he is Black, no one would say it’s okay because he’s still on the faculty.

The student protests at Harvard provided the institution with an opportunity. It could have used the incident as a teachable moment about the importance of criminal defense in our society as well as about the importance of tolerance on a campus of higher learning. It could have demonstrated that there is a fundamental distinction between a lawyer and his clients — and that our system of rights depends on that distinction. Instead, it sacrificed principle in an apparent quest for an easy way out.

What lesson does that teach?

VIEW COMMENTS

Source: OTHERWISE: Yale Law Dean defends theory/activist law school education

“At its best, a J.D. is a thinking degree, a problem-solving degree, a leadership degree. Lawyering is a job that requires an enormous number of skills and literacies. You must possess a supple mind and sound judgment. You need to have institutional sense and sharp analytics. You must be literate and numerate. You must be able to distill an unruly, messy set of materials into a coherent form. You must question everything, especially your own priors. You must possess enough critical distance to evaluate a situation but enough human empathy to understand it. Your education must be rigorous enough to breed humility rather than hubris.”Heather Gerken, Dean – Yale Law School

I thoroughly agree.  In the fall of 1970 – my first semester of law school at Rutgers-Newark – I was part of a group of students reviewing the transcript of the Chicago 7 trial.  I wrote a point in the brief on appeal, which was the work of Arthur Kinoy who soon blocked unlawful FBI surveillance, leading to the FISA court.  In my second semester Ruth Ginsburg laid out her vision for the years ahead.  Paul Trachtenberg set in motion the landmark educational equity jurisprudence of the New Jersey Supreme Court.  I could go on …and I have in the pages of the Fordham Urban Law Journal which published my essay People’s Electric -Engaged Legal Education at Rutgers-Newark in the 1960’s and 1970’s. – gwc

Source: OTHERWISE: The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court – LEDERMAN – Balkinization

I had the privilege of working with Arthur Kinoy and Morton Stavis while at Rutgers Law School.  In the ’60’s and ’70’s they were the architects of a remarkable string of victories in the U.S. Supreme Court.  They worked on the assumption that every member of the Court could be reached, so confident were they of their arguments’ foundations and the good faith of the members of the court.  Today I try to take the same stance as a teacher.  But it’s getting harder to sustain. – gwc

Balkinization: The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court

By Marty Lederman (Georgetown Law) (first published October 16, 2018)

On May 15, 1969, Justice Fortas resigned from the Supreme Court, thereby ending a seven-year period in which a 5-4 majority of the sitting Justices had been appointed by Democratic Presidents.  I had just turned eight years old.  I’m now almost 58.  And yet that day in May 1969 remains the last moment in time that a majority of the Court was appointed by Democrats.  That’s right:  By the time the Court’s current Term ends in June, it will have been more than 50 years of GOP-appointed control.

The appointment of Merrick Garland should have brought an end to that extraordinary streak.  Retaining control of the Court, however, has become an article of Republican faith–hardly surprising when it’s become a bulwark of theirs, a virtual background assumption, for fully half a century.  And now, thanks to Mitch McConnell’s deviousness, tactical brilliance and tenacity, it appears entirely possible that it might be another 50 years (or perhaps even longer) until we see another Democratic majority.  A full century of Republican control is not hard to imagine.  (And how’s this for a (related) factoid?:  In only seven of the past 108 years (1946-1953) has the Chief Justice of the United States been a Democrat who did not fight on behalf of the Confederacy.)

Source: OTHERWISE: Harvard Drops Harvey Weinstein Lawyer as a Faculty Dean – The New York Times

Students in Winthrop House had called for the resignation of Robert S. Sullivan Jr., a law professor. He and his wife were the first African-American faculty deans in Harvard’s history.

This decision is troubling.  Robert Sullivan is a hero lawyer, in my opinion.  Closest to home for me was his role in designing and overseeing the late Brooklyn D.A. Kenneth Thompson’s Conviction Review program which scrutinized convictions to find those unjustly jailed. – gwc

Source: OTHERWISE: Should retired judges be beyond the reach of the courts?

by George W. Conk

Alex Kozinski, Brett Kavanaugh, and Maryanne Trump Barry have all been relieved of the burden of inquiries into their conduct under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364, which empowers the federal judiciary “to determine whether a covered judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or is unable to discharge the duties of office because of mental or physical disability.”

The three have in common that their resignations from the bench assertedly deprived the courts of jurisdiction because a judge is no longer a judge when he or she retires (Kozinski and Trump Barry) or steps up to the United States Supreme Court (Kavanaugh).  In each circumstance, according to the Second Circuit Judicial Council (in the Kozinski case) the “Act is concerned with individuals whocurrently exercise the powers of the office of federal judge”.  Because he or she “can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the Act” making the proceedings “unnecessary”.  Yet the two Circuit Judges collect pensions at full salary for life [28 U.S.C. 371(a)] and, if willing, may be “assigned judicial duties”. [28 U.S.C. 294] The now Associate Justice draws a salary as a member of the highest court and very much “performs judicial duties”. KEEP READING

OTHERWISE: ABA: Immigration Courts face existential crisis – system “irredeemably ” dysfunctional

from the ABA Commission on Immigration – 2019 report (full text linked above):

The immigration courts are facing an existential crisis. The current system is irredeemably dysfunctional and on the brink of collapse, and the only way to resolve the serious systemic issues within the immigration court system is through transferring the immigration court functions to a newly-created Article I court. This approach is the best and most practical way to ensure due process and insulate the courts from the capriciousness of the political environment. It is further our view that the public’s faith in the immigration court system will be restored only when the immigration courts are assured independence and the fundamental elements of due process are met.

A former federal prosecutor has some thoughts on the Barr Gambit … A few thoughts on the Barr Gambit, and Mueller decisions.

Strong discussion of prosecutorial discretion – its use and abuse.

Source: The Barr Gambit – Talking Points Memo

 Prosecutorial discretion! 

Paul Rosenzweig carefully analyzes the ambiguities in Attorney General Barr’s letter on the still secret Mueller report which reportedly concluded that the Trump campaign did not conspire with the Russian government to steal data and interfere in the 2016 presidential election.

The second aspect is that despite conflicting evidence Mueller decided not to charge Trump with obstruction of justice.  The key factors are likely difficulties of proof of intent (liars lying), and adherence to Justice Department policy not to charge if there is another remedy – here impeachment by the U.S. House of Representatives. – gwc

Source: OTHERWISE: Unpacking the Barr Letter re Mueller ~ Rosenzweig // Lawfare – Brookings Institution

Source: 55 years after first SCOTUS appearance, lawyer is back for second redistricting case

Another good thing about legal academia.  No mandatory retirement age. – gwc

Bondurant’s current age is 82, and he says he has no plans to retire or to quit his work to improve democracy through the courts.

“I’d rather spend my time doing that than playing golf, in part because I play golf so badly that the opportunity not to play is itself a positive,” Bondurant told NPR. “But this is really important stuff, and it’s very fundamental.”

Danielle Conley of Wilmer Hale and former associate Ariel Levinson have authored an issue brief on Discriminatory License Suspension Schemes.  It is an important access to justice and right to counsel issue.

Source: OTHERWISE: Discriminatory Driver’s License Suspension Schemes – American Constitution Society

Source: OTHERWISE: Legal Deserts – Crisis in Rural America ACS/Harvard Law & Policy Review

 The American Constitution Society and  the Harvard Law and Policy Review have announced a new issue on the crisis of  justice in rural areas. 

The New Jersey Supreme Court has issued a Notice to the Bar.  It has rejected in part, accepted in part, and deferred in part the recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance.  It concurred with the November 2017 report recommendation that malpractice insurance not be mandated for all private practitioners.  The Court retains its Rule 1:21-1A that all limited liability firms must carry insurance in the minimum amount of $100,000 (multiplied by the number of attorneys in the firm). The Court concurred with its Committee that lawyers be required to publicly register evidence of the coverage they carry.  The Administrative Office of the Courts is directed to develop procedures to implement the principle.  And the Court announced that it will revisit at an unspecified date whether attorneys who lack coverage should be required to disclose that fact. – gwc

Source: OTHERWISE: New Jersey Supreme Court Rejects Mandatory Malpractice Insurance, embraces disclosure of coverage

Source: OTHERWISE: Harvard Law Prof Defends Decision to Represent Weinstein

Ronald Sullivan, a former Public Defender and the Director of Harvard Law’s criminal justice program, is one of the most prominent criminal defense lawyers in the country.  An African American long associated with criminal justice reform, he has drawn disapproval from some for signing on to the defense team of Harvey Weinstein, the Hollywood mogul now under indictment for sexual assault.

After students criticized him, including the editors of the student-edited daily Harvard Crimson fifty two Harvard Law Professors rose to his defense in an open letter.
Sullivan has now defended himself in a long interview published today in the New York magazine.

– GWC