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.
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).
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.
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
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.
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 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
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.
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)
by Legal Ethics in Motion
by George W. Conk
When the United States Supreme Court, split along the familiar lines, reversing the courts below, ordered “Per Curiam” that Wisconsin voters who chose mail ballots must have them post-marked by midnight of election day, Tuesday, April 7, the usual alarms rang. Defenders saw a ruling to maintain regular order and ballot integrity; critics saw a partisan effort to reduce voting and aid a Republican seeking to retain a state Supreme Court seat. Of course, neither an effort to save or gain a court seat should motivate the decision on how to conduct an election.
Complaints about the erosion of rule of law are so pervasive that it becomes like the drone note in a dirge. But very so often someone usually quiet raises a voice. Unfortunately it’s usually someone retired or who served in the ancien regime before the debacle. So it was good to hear Michael Horowitz, who is both Chair of the `Council of the Inspectors General on Integrity and Efficiency’ (CIGIE) and the Inspector General at the Department of Justice speak of dismissed Inspector General Michael Atkinson. Horowitz has put his own job on the line. – gwc
DOJ Inspector General backs dismissed IG Atkinson
Michael Atkinson, the Inspector General for the Intelligence Community: “Inspector General Atkinson is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight. That includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence stated in congressional testimony was done “by the book” and consistent with the law…
In New York and New Jersey public defenders are playing an essential role: fighting to reduce the populations of people jailed in City and County jails.
Both have had significant success in recent days, as the post above shows. – gwc
Such bluntness evokes the 2004 remarks by Judge Guido Calabresi – former Yale Dean. Calabresi said at a conference that George W. Bush should not be re-elected, that he had become President through the “illegitimate acts of a legitimate institution”. Calabresi later apologized for his remarks, was admonished by Chief Circuit Judge John Walker (a first cousin of Bush 42). Walker’s admonishment was ratified by a 2005 judicial discipline report of the 2d Circuit, 404 F. 3d 668.
While the code of ethics for federal judges allows for public discussion of the law, it prohibits political activity, especially when it deals with candidates for office. U.S. District Judge Lynn S. Adelman’s article said conservative justices are “undermining democracy” while President Donald Trump’s “temperament is that of an autocrat,” Republicans are “focused on serving the wealthy,” and GOP senators display “zealous partisanship [reminiscent of] those fervent defenders of slavery who pushed the South into the Civil War.”
“A judge is making public remarks that can be construed as opposing a sitting president who is running for re-election,” said Arthur Hellman, a University of Pittsburgh law professor who has advised Congress on judicial ethics. “The whole theory of judicial impartiality is not that judges have no views on political and social issues, but that they can separate those personal views from what they do as judges. If judges go out in public and start talking about their political and social views, I think people will legitimately wonder, can they separate them?”
Judge Adelman stood by his article in an interview with Law360 Wednesday.
“Judges are encouraged to talk about current legal issues and problems,” he said, adding that it is “certainly reasonable and important to talk about” Supreme Court decisions.
Nancy Gertner, a former federal judge in Massachusetts who teaches at Harvard Law School, told Law360 that such commentary is part of academic debate.
“You can speak critically about the administration of justice,” she said. “There are many of us who are law professors who have written critically about [a] decision. This is within the zone of what it’s appropriate for a judge to talk about.”
“I just don’t know how they cannot recuse themselves for anything Trump or Trump-related” – Donald Trump speaking of Justices Sonia Sotomayor and Ruth Ginsburg
Donald J. Trump
✔@realDonaldTrumpThere has rarely been a juror so tainted as the forewoman in the Roger Stone case. Look at her background. She never revealed her hatred of “Trump” and Stone. She was totally biased, as is the judge. Roger wasn’t even working on my campaign. Miscarriage of justice. Sad to watch!
Gabriel (Jack) Chin at Scotus blog has a good discussion of U.S. v. Sineneng-Smith – a challenge to the Immigration and Nationalities Act which in Section 1324 presents a risk of criminal prosecution to lawyers, advocates, and families of people without a legal right to be in the U.S.
The President’s oath of office is to the laws and constitution. He/she is not the sole receptacle of the power of the executive branch of the executive branch of the United States government. Attorney General Barr has embraced the opposite view. But Bernadette Meyler (Stanford Law) has amplifed the argument tellingly stated by Fordham law profs Andrew Kent, Jed Shugerman, and Ethan Leib.
If you haven’t looked at this discussion I recommend that you take a good luck at this ongoing and very accessible discussion which began and continues in the pages of the Harvard Law Review. As officers of the court we are acutely aware of the limits of our authority – and of our duty of independence – bred of our oath to uphold the law. But by the fulsome embrace of the unitary executive theory which places all executive authority in a single person – not the office, but the person of the President – Attorney General Barr abdicates his duty. In his own words, he works under “presidential supervision” rather than as a protector of the people as sovereign. – gwc
The first time in our history a United States Senator has ever voted to convict an impeached President of his own Party. Mitt Romney February 5,2020…
Click through for the C-Span clip of the full, historic statement.
The post linked above is to the full video of Rep. Adam Schiff’s closing argument today to the United States Senate. It is an exemplar of professional and civic responsibility.
The New York City Bar Association has sent a letter to Congressional leaders, urging them “to commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice.”
The letter asserts that in several extended public statements during the past few months, Mr. Barr has disregarded “bedrock obligations for government lawyers,” including “to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities.”
These statements include an October speech at the University of Notre Dame, now posted on the Department of Justice’s website, in which Mr. Barr stated that “the Founding generation . . . believed that the Judeo-Christian moral system corresponds to the true nature of man” and that “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.” Expressing his view that “Judeo-Christian values . . . have made this country great”—while simultaneously rejecting the moral basis of secularism and, by implication, other religions (and atheism) as “an inversion of Christian morality,” Mr. Barr vowed to place the Department of Justice “at the forefront” of efforts to resist “forces of secularization.”
In a November speech at the Federalist Society’s National Lawyers Convention, Mr. Barr charged that “opponents of the Trump presidency’s policies” have been “engaged in the systematic shredding of norms and the undermining of the rule of law” and referred to what he called a “progressive holy war,” characterized by the use of “any means necessary to gain momentary advantage.” By contrast, Mr. Barr proclaimed, conservatives “tend to have more scruple over their political tactics” and are “more genuinely committed to the rule of law.”
In December – following earlier remarks at a Fraternal Order of Police gathering in which he criticized District Attorneys from “large cities” who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law,” and “an increasingly vocal minority” that “regularly attacks the police and advances a narrative that it is the police that are the bad guys” and “automatically start[s] screaming for the officers’ scalps, regardless of the facts” following “a confrontation involving the use of force by police”– Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.” While Mr. Barr did not specify which “communities” were at risk of seeing decreased police protection because they lack respect for law enforcement, and notwithstanding his later denial that he had suggested that people should not criticize police officers and his assertion that he had merely been referring to the high rates of job vacancies in police agencies throughout the country, “his comment was understood by some observers, not unreasonably, as being directed toward members of communities of color protesting excessive use of force by police,” the letter states.