A Century Later, a Little-Known Mass Hanging of Black Soldiers Still Haunts Us – Progressive.org

Source: OTHERWISE: A Century Later, a Little-Known Mass Hanging of Black Soldiers Still Haunts Us – Progressive.org

100 years after one of the least-known and saddest chapters in American history, families of executed black soldiers have petitioned Trump for justice. Sixty-three black soldiers were represented by one lawyer in the largest court martial in U.S. history, the first of three that followed the Houston riot of 1917. In total, 110 men out of 118 were found guilty, and nineteen were sentenced to death by hanging.

OTHERWISE: No right is secure: Thomas , Gorsuch and Alito disparage right to counsel set in Gideon v. Wainwright

Source: OTHERWISE: No right is secure: Thomas , Gorsuch and Alito disparage right to counsel set in Gideon v. Wainwright

The breadth of the threat to well established rights is stunning.  In the past few weeks Justice Clarence Thomas has reportedly directly lobbied Senators to place a former clerk on the Court of Appeals for the D.C. Circuit; questioned Times v. Sullivan; disparaged Times v. Sullivan;and declared that Roe v. Wade and Dred Scott v. Sanford are among the worst decisions of the court and the fruit of the same constitutional doctrinal defects.  The targets have expanded to include a three judge attack on the expansion of right to counsel beginning with Powell v. Alabama which reversed the nine notorious death sentences in the Scottsboro cases, the injustices of which are described in this contemporaneous ACLU reportKEEP READING

Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion

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Source: OTHERWISE: Louisiana Supreme Court Disbars Attorney For Anonymous Online Posts – Legal Ethics in Motion

 

The Louisiana Supreme Court has disbarred a former Assistant United States Attorney for posting anonymous, online comments about cases being handled by his office.

From November 2007 through March 2012, Sal Perricone, an Assistant United States Attorney for the Eastern District of Louisiana, used five anonymous pseudonyms to post over 2,600 comments on the New Orleans Times-Piscayne website. On 100 to 200 of those posts, Perricone offered his strong opinion on cases with which either he or his office were affiliated. 

In one case that involved the prosecution of police officers over the shooting of unarmed civilians in the aftermath of Hurricane Katrina, Perricone wrote: “NONE of these guys should have ever been given a badge.” The officers were convicted but, the district court judge reversed the police  convictions, in a 129 page opinion that cited “grotesque prosecutorial misconduct,” referring in part to Perricone’s comments.

Read the full opinion here.

Closing the Gap in Judicial Ethics

Source: Closing the Gap in Judicial Ethics

On Tuesday, January 29th, at 10am, Sarah Turberville, Director of The Constitution Project at POGO, testified at a hearing before the House Judiciary Committee on H.R. 1, the For the People Act of 2019.

Thank you, Chairman Nadler, Ranking Member Collins, and Members of the Committee for the opportunity to speak with you today about H.R. 1, the For The People Act of 2019. My name is Sarah Turberville and I am the director of The Constitution Project at the Project On Government Oversight. Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing; The Constitution Project was founded in 1997 and joined POGO in 2017. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.

Sarah Turberville, director of The Constitution Project at POGO, testifies before the House Judiciary Committee on H.R. 1, the For the People Act, January 29, 2019.

Statement on H.R. 1, the For The People Act of 2019

Section 7001 of the For the People Act would close a conspicuous gap in federal ethics rules. It would require the Judicial Conference of the United States to issue a code of conduct applicable to each judge and justice of the United States, which may include provisions “that are applicable only to certain categories of judges or justices.”1 We strongly support this long-overdue ethics reform and encourage lawmakers to view this measure as a first step toward preserving the actual and perceived integrity of the federal courts.

A magnifying glass hovers over the U.S. Capitol.

A Closer Look at Ethics Reforms in HR 1, the For the People Act

This ambitious proposal, the “For the People Act,” includes many reforms that the Project On Government Oversight (POGO) has long supported. For example, for years, POGO has advocated for stronger policies to ensure that high-level government officials going through the revolving door between government service and private industry do so in a way that protects government policies from undue industry influence.

Read More

By extending a code of ethics to the Supreme Court for the first time, the legislation seeks to balance the need to enhance the public’s faith in the judiciary with the imperative to safeguard the separation of powers between the legislative and judicial branches. While tough questions concerning the scope and enforcement of a code of conduct for the Supreme Court may arise, the benefits of applying such a code to the justices—including the benefits that would flow to the public’s understanding and perception of the courts—far outweigh any disadvantages.

A code of conduct for all judges and justices of United States courts could increase public confidence in the legitimacy, integrity, and independence of the courts. It would also better ensure fairer application of ethics rules—perhaps with the added benefit of the justices’ closer scrutiny of their own conduct. A code of conduct for the entire federal judiciary has bipartisan support. In the last Congress, a Republican-sponsored bill contained an identical provision.2

OTHERWISE: Access to Justice | American Academy of Arts and Sciences

Daedalus – the journal of the American Academy of Arts and Sciences has published an entire issue on Access to Justice (A2J).  It is the fi…

Source: OTHERWISE: Access to Justice | American Academy of Arts and Sciences

Daedalus – the journal of the American Academy of Arts and Sciences has published an entire issue on Access to Justice (A2J).  It is the first ever open access online issue of Daedalus.  Of particular note to me are Tonya Brito (Wisconsin) on the right to civil counsel, Robert Gordon on the history of lawyers support for access to justice, and Dean Andrew Perlman (Suffolk) on what law schools can do about it. I have copied the abstracts and links which appear on the blogpost on Otherwise, above. – gwc

Access to Justice | American Academy of Arts and Sciences

OTHERWISE: Hearings, counsel required before suspending driver’s licenses in delinquent child support cases – NJ Superior Court

Source: OTHERWISE: Hearings, counsel required before suspending driver’s licenses in delinquent child support cases – NJ Superior Court

Due Process requires hearings, counsel for suspending driver’s licenses in delinquent child support cases, New Jersey Superior Court holds

Responding to Congressional pressure and the problem of substantial delinquencies in court-ordered child support payments – much of it owed to the state which sought to recover welfare payments – New Jersey in 1998 amended its child support act, providing in NJSA 2A:17-56.41 (a) for suspension of driving licenses “as a matter of law” if a child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months”.  Judges, on the recommendation of probation officers, issued failure to pay (FTP) warrants by virtue of which the statutes provides the “ obligor’s driver’s license shall be suspended by operation of law”.

In Trenton Superior Court Judge Mary Jacobson has ruled that this “automatic” suspension of driving privileges violates both “due process” and “fundamental fairness”.  Relying on our State Constitution in her 187 page opinion in Kavadas v. Martinez as Chief Administrator of the Motor Vehicle Division, the Mercer County Assignment judge enjoined such automatic suspensions and gave the State 120 days to devise regulations to eliminate this practice by which some 20,000 people each year have lost their driving licenses without notice or an opportunity to be heard.

The obligation to pay child support depends on the ability to comply with court-ordered child support payments.  Delinquency is concentrated among low income parents with support obligations.  It is only willful failure to pay that is enforceable and sanctionable.  Jacobson therefore ordered the state to provide counsel to indigent obligors who seek to demonstrate their inability to pay, typically due to changed circumstances such as job loss, ill health, etc.  Building on the landmark ruling in Pasqua v. Council (2006), in an opinion by Justice Barry Albin the state Supreme Court required that “attorneys be appointed to assist indigent non-custodial parents facing incarceration at child support enforcement hearings”.

Aside from the automatic license suspensions enjoined, in some circumstances a hearing officer may recommend or a judge may order suspension of a license as a punitive and coercive measure.  Plaintiffs, represented by the lawyer who prevailed in Pasqua, sought to extend the right to appointed counsel to all indigent obligors who faced serious consequences for failure to pay child support.  Judge Jacobson extended the Pasqua principle to some civil enforcement of litigants’ rights hearings.  She explained that  “both due process and fundamental fairness require courts to provide counsel to indigent obligors at any hearing at which a hearing officer may recommend a driver’s license suspension to a court, or at any hearing when the family court itself is considering a driver’s license suspension.”

In her comprehensive opinion Judge Jacobson took note of a 2006 study by the Bloustein School of Planning and Public Policy with the New Jersey Motor Vehicle Commission –  Motor Vehicles Affordability and Fairness. The report “found that 42% of individuals who had their licenses suspended lost jobs as a result of the suspension, 45% of those who lost jobs could not find another job, and 88% of those that were able to find another job reported a decrease in income.” Jacobson wrote that “[e]ven though most of the Report’s findings addressed license suspensions in general and did not focus on child support-related suspensions, it is reasonable to assume that the affected dependents likely included many children who are the subject of child support orders, and the very individuals that the automatic license suspensions were intended to benefit.”  The Bloustein/MCV report also found that in low income areas “child support suspension rates for drivers…were ten times higher than the Statewide average.”

Judge Jacobson’s ruling addresses an important public problem.  It is to be hoped that Philip Murphy, the state’s Democratic Governor, his Attorney General, and the Division of Family Development will work diligently and earnestly to produce the new regulations which the court has granted 120 days to formulate.  Judge Jacobson declined to make her order retroactive.  Thousands of parents – especially low income -doubtless remain stranded without driving privileges.   Their status is something which the Legislature can and should address.

Finally, as the judge urged, the Legislature should “remove the provision directing automatic suspension of drivers licenses upon issuance of a support-related warrant.”   Judge Jacobson opined that “[s]uch an amendment would also end New Jersey’s outlier status as the only state utilizing this linkage and would restore the procedural protections originally afforded to obligors facing driver’s license suspensions.”

– George Conk
December 14, 2018

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error – ABA Formal Opinion 481

Source: OTHERWISE: A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error – ABA Formal Opinion 481

ABA Formal Opinion 481 (April 2018)

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error

A perhaps too little recognized irony of the duties of loyalty, diligence, and competence we owe our clients is that the dangers faced may be of our own making.  When we have made a mistake – missed a deadline, failed to join a party needed for proper resolution, or otherwise put a client’s interests at risk a conflict of interest arises.  Our duty of reasonable consultation (RPC 1.2) generally requires us to keep the client informed of our efforts.  But that duty is sorely tested when we may have caused the client harm.  When must we tell the client?  He ABA in Formal Opinion 18- 481 has recently addressed that.

 

The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion, Rule 1.4, requires that ethical lawyers “self-report” to a current client if they have erred in the client’s representation and if the error is material.  The test is whether a disinterested lawyer would conclude that the error (a) is reasonably likely to harm or prejudice the client; or (b) is of such a nature that it would reasonably cause a client to consider terminating representation even in the absence of harm or prejudice.

RPC 1.4(a) requires a lawyer to promptly inform a current client (a) of any decision or circumstance which requires the client’s informed consent; (b) to reasonably consult with the client about the means by which the client’s objectives are to be accomplished; and (c) to “keep a client reasonably informed about the status of a matter.”  RPC 1.4(b) also requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  In a broader context, the guiding principle which furnishes the foundation for RPC 1.4 is that “the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interest.”

Model Rule 1.7(a)(2) provides that a concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.” Where a lawyer’s error creates a Rule 1.7(a)(2) conflict, the client needs to know this fact to make informed decisions regarding the representation, including whether to discharge the lawyer or to consent to the conflict of interest. At the other extreme, an error may be minor or easily correctable with no risk of harm or prejudice to the client.

 

 

It is noteworthy that the ABA concludes that the duty to report is not owed to a former client.  But it seems to me that if a lawyer has breached the duty to report his/her own error there may still be a duty – and the malpractice statute of limitations may well be tolled by the failure to disclose one’s error.

As the ABA Opinion 481 observes various jurisdictions have over the years addressed the self-reporting obligation as a corollary to RPC 1.4 and 1.7(b).  New Jersey’s Supreme Court Advisory Committee on Professional Ethics in its Opinion 684, published in 1998, has stated that “when the attorney ascertains malpractice may have occurred, even though no damage may yet have resulted, has an obligation to disclose this to his or her current client.”

In New Jersey where I practiced for thirty years and remain an active member of the bar our Supreme Court in the 1997 case of Olds v. Donnelly, reminded attorneys that they have an obligation to notify clients when the client may have a legal malpractice claim, even though notification will be adverse to the attorney’s own interest.  The Court there relied on RPC 1.7(a)(2) which states that a conflict of interest arises if “there is a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer”; which, therefore, requires the client to be advised of the attorney’s error in order for the client to make an informed decision as to whether to discharge the lawyer or to consent to the conflict of interest.

  • GWC

John Gibbons Dies at 94; Argued for Rights for Guantánamo Detainees – The New York Times

Source: OTHERWISE: John Gibbons Dies at 94; Argued for Rights for Guantánamo Detainees – The New York Times

One footnote, not mentioned in this excellent obituary by Richard Sandomir in the Times, is that In 2006 Gibbons directed two young lawyer lobbyists at his law firm to press to accomplish the repeal of the death penalty by the New Jersey Legislature. They helped to bring about repeal in December 2007, an event marked by illumination of the Colosseum in Rome. – gwc

John J. Gibbons dies at 94

A true role model.  A great man, a great lawyer, a great judge, a great teacher.
John J. Gibbons Dies at 94 | Newsroom | Gibbons P.C.

Mr. Gibbons committed his 65-year career to protecting the rule of law in this country, a commitment that took root in the 1960s – when, as President of the New Jersey State Bar Association, he enlisted attorneys during the Newark Riots to help those unable to afford legal representation – and blossomed in the new century, with the historic Supreme Court of the United States decision in Rasul v. Bush among his most famous and impactful achievements. In 2004, Mr. Gibbons joined with two other former federal judges from New Jersey to file United States Supreme Court briefs opposing the detention, without judicial review, of the 660 men incarcerated at the Guantánamo Bay Naval Base. Mr. Gibbons argued the case, and, in a historic decision, the Court decided in favor of the Guantánamo Bay detainees, demonstrating clear support for civil liberties and government transparency in the war on terrorism.
“The Judge played a lot of roles here at the firm that bears his name: role model, teacher, mentor, friend, and hero,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons P.C. “He was a quiet, soft-spoken legal rock star who walked among the giants in our profession and, in the process, became one of the biggest.”

Independence of the Department of Justice: A fraught history. Trump’s appointment of Matthew Whitaker unlawfully bypasses Senate-confirmed officers

There is a long tradition of presidents appointing loyalists as Attorney General.  Robert F. Kennedy and Griffin Bell come immediately to mind as the brother and childhood friends of John Kennedy and Jimmy Carter.  Professor Jed Shugerman has critically explored that history at length in a work in progress.

But there was an important post-Watergate shift which sought to buttress the independence of the office of the Attorney General and the entire Department of Justice from the presidency.  In 1977 the passage of 28  USC 508 governed succession in the Department of Justice in the event of a vacancy of the office of the Attorney General – head of the Department of Justice, itself created in 1870, a subject explored in the Stanford Law Review by Fordham legal historian Shugerman.  The 1977 Act was preceded by  the 1976 Omnibus Crime Control Act 42 USC 3701 that created a ten year term for the Director of the Federal Bureau of Investigation who must be confirmed by the Senate.  The clear policy thrust is to strengthen independence of the Department of Justice and Attorney General. It is that which is threatened by Mr. Trump’s appointment of Mark Whitaker as Acting Attorney General to assume oversight of  an investigation of the President himself. I discuss the legality of Trump’s appointment in the post linked below- GWC

Source: OTHERWISE: Trump’s appointment of Matthew Whitaker unlawfully bypasses Senate-confirmed officers

OTHERWISE: U.S. Courts: Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts

Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts Published on September 13, 2018 …

Source: OTHERWISE: U.S. Courts: Judicial Conference Addresses Workplace Conduct and Criminal Justice Act Issues | United States Courts

The Judicial Conference today approved changes to the Judiciary’s Model Employment Dispute Resolution (EDR) Plan to cover interns and externs and to extend the time for initiating EDR complaints from 30 to 180 days. The Conference’s Judicial Resources Committee will consider further changes to the model plan at its next meeting. The Director of the Administrative Office of the U.S. Courts also reported on the recruitment of a Judicial Integrity Officer in the Administrative Office and the expansion of judicial, staff, and law clerk orientations and education dealing with workplace harassment.

In addition, the Chairs of the Committees on Codes of Conduct and Judicial Conduct and Disability reported to the Conference on proposed amendments to the Codes and Conduct Rules responsive to the recommendations contained in the June 2018 Report of the Federal Judiciary Workplace Conduct Working Group. The proposed amendments were published today for public comment.

The amendments include provisions that state:

  • A judge has an affirmative duty to promote civility, not only in the courtroom, but throughout the courthouse.
  • A judge should neither engage in nor tolerate workplace misconduct, including comments or statements that could reasonably be interpreted as harassment, abusive behavior, or retaliation for reporting such conduct.
  • A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that another judge’s conduct violated the Code. The action should be reasonably likely to address the misconduct, prevent harm to those affected by it, and promote public confidence in the integrity and impartiality of the Judiciary.
  • In order to file a misconduct complaint, an individual does not have to be subject to alleged misconduct.
  • Confidentiality obligations of employees should never be an obstacle to reporting judicial misconduct or disability.
  • A judge has an obligation to safeguard complainants from retaliation. Retaliation for reporting misconduct constitutes judicial misconduct.
  • A judge’s failure to call to the attention of the relevant chief judge clearly identified information reasonably likely to constitute judicial misconduct constitutes judicial misconduct.
  • An express reference to workplace harassment within the definition of misconduct.

OTHERWISE: The Real McCoy: Good Intentions Cannot Overrule Client’s Instructions | Legal Ethics in Motion

POSTED BY  ALICE KERR  ON OCT 12, 2018 IN  ATTORNEY-CLIENT RELATIONSHIP The Real McCoy: Good Intentions Cannot Overrule Client’s Instructio…

Source: OTHERWISE: The Real McCoy: Good Intentions Cannot Overrule Client’s Instructions | Legal Ethics in Motion

Update: The matter of McCoy v. Louisiana first appeared on this blog on October 17, 2017. The United States Supreme Court granted certiorari to decide whether a criminal defense attorney is constitutionally permitted to concede his or her client’s guilt over the defendant’s objections.

Robert McCoy was charged with three counts of first-degree murder and pleaded not guilty. McCoy’s parents hired Larry English to take over the case after McCoy had his assigned counsel removed.  English concluded that the evidence against McCoy was overwhelming and the best strategy for avoiding the death penalty would be to admit guilt at trial and plead mental incapacity at sentencing. McCoy insisted on his innocence and objected to any admission of guilt.  Two days before trial, McCoy petitioned the court to terminate English’s representation. English also supported this request.  However, the trial court refused McCoy’s request.

At the guilt phase of the trial, English told the jury that McCoy “committed [the] three murders.” McCoy then testified in his own defense. The jury found McCoy guilty on all three counts. During the penalty phase, English again conceded that McCoy committed the crimes, but asked for mercy given McCoy’s mental and emotional issues.  The jury returned three death verdicts. The Louisiana Supreme Court, upheld McCoy’s conviction and sentence.  The Louisiana Supreme Court concluded that English had the authority to concede guilt as a trial strategy. The Louisiana Supreme Court upheld English’s conduct by relying on the Louisiana Rules of Professional Conduct Rule 1.2(d), which states, “a lawyer shall not. . . assist a client, in conduct that the lawyer knows is criminal or fraudulent.” The LA Supreme Court opined that had English presented McCoy’s alibi defense, English could be implicated in perjury, given English’s disbelief in McCoy’s alibi.

In a 6-3 decision, the United States Supreme Court reversed the Louisiana Supreme Court’s ruling and held that McCoy’s Sixth Amendment rights were violated.  The decision discussed the allocation of authority in the lawyer-client relationship, considering two points: (1) who has the ultimate authority to decide the objectives of representation, and (2) who has the authority to decide how to carry out those objectives?  The SCOTUS decision echoes Louisiana RPC Rule 1.2 (a), which states that a lawyer “shall abide by the client’s decisions concerning the objectives of representation” and provides that “in a criminal case, a lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.”

Ultimately, the defendant has the right to choose the objective of his defense. The lawyer then crafts the strategy around how to best achieve that objective. Thus, McCoy had the right to maintain his innocence, have his case presented, and let the jury decide.  English, irrespective of his good intentions, foreclosed that right by controlling every aspect of the case to the detriment of his client’s objectives.

Read the United States Supreme Court decision here.

OTHERWISE: Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters

Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters by Alison Frankel (Reuters) – It’s always no…

Source: OTHERWISE: Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters

 

(Reuters) – It’s always notable when a federal judge presiding over a big class action slashes a fee request by millions of dollars – but I think there’s another story lurking beneath the dollar signs in an opinion issued Tuesday by U.S. District Judge Lucy Koh of San Jose.
Three plaintiffs’ firms that obtained nearly $170 million for artists and engineers whose job prospects suffered under an alleged no-poaching agreement among animation studios asked Judge Koh to award them $31.5 million for squeezing a $150 million settlement from Disney and Dreamworks. The judge instead granted them $13.8 million. She previously awarded $4.7 million in fees for a smaller classwide settlement, bringing the total fees for plaintiffs’ lawyers from Cohen Milstein Sellers & Toll, Hagens Berman Sobol Shapiro and Susman Godfrey to about $18.5 million.
Notably, Judge Koh’s award was based not on the recovery the firms won for class members but on their hourly billings. The firms wanted the judge to grant them 21 percent of the class recovery, which, they argued, is less than the 25 percent benchmark established by the U.S. Court of Appeals for the 9th Circuit. Judge Koh, however, applied the alternative lodestar approach.

OTHERWISE: Oregon Bar Dues Challenged on First Amendment Grounds

In Janus v. American Federation of State County and Municipal Employees  in a 5 -4 vote the United States Supreme Court struck an Illinoi…

Source: OTHERWISE: Oregon Bar Dues Challenged on First Amendment Grounds

 

In Janus v. American Federation of State County and Municipal Employees in a 5 -4 vote the United States Supreme Court struck an Illinois law requiring public employees represented by an AFSCME local to pay “agency fees” to the union for its representation which protected the interests of all bargaining unit members.  The majority rejected that argument – holding that union advocacy on matters such as state budgets was political speech which the objecting members could not be compelled to “subsidize”.

Now two Oregon lawyers are objecting to the fees charged by the Oregon State Bar to which they are obligated by statute to contribute.  In their complaint Diane Gruber and Mark Reynolds object to a statement by the State Bar denouncing “White nationalism”.  I would vote for that statement every day if it were offered before the voluntary New Jersey State Bar Association of which I have been an active member for thirty years.  But the Oregon State Bar is not a voluntary organization for lawyers who want to practice in the State.  So though Gruber and Reynolds may have ideological views I find abominable, they do seem to have grounds for their complaint relying on Janus. – gwc

Avvo Legal Services To Be Shut Down | LawSites

Below is the best account I’ve found of the decision to close the AVVO attorney referral business.  In half a dozen states private bar or state bar committees had ruled against the company’s business model.  They found that the “advertising fee” structure – which went up as the legal fee rose -constituted illegal fee sharing or referral fees to non-lawyers. In New Jersey the Supreme Court’s Advisory Committee on Professional Ethics (on which I serve) responded to an inquiry by the private New Jersey State Bar Association.  Although we found AVVO in violation we cleared Legal Zoom as a lawful referral system.   In contract to AVVO’s demise Legal Zoom – in the New York – New Jersey region at least – is advertising heavily. – gwc

Source: Avvo Legal Services To Be Shut Down | LawSites

 

Legal directory Avvo is shutting down its controversial Avvo Legal Services, a service that provides fixed-fee, limited-scope legal services through a network of attorneys.

Internet Brands, the company that acquired Avvo last January, has decided that the service does not align with its business and focus, according to a letter sent by B. Lynn Walsh, Internet Brands’ executive vice president and general counsel, to the North Carolina State Bar last month.

At Internet Brands, we are focused on our users, and making sure we provide them with accurate, and consumer-friendly information to help them navigate the difficult tasks of identifying and hiring lawyers. As part of our acquisition of Avvo, we have evaluated Avvo product offerings, and adjusted the Avvo product roadmap to align more comprehensively with our business and focus. Accordingly, we have decided to discontinue Avvo Legal Services. The discontinuation began this month, with completion expected by the end of July.

News of the shut-down was first reported last week on the Responsive Law blog, which also published the full text of the letter. Gabrielle Orum Hernández also had details at Legaltech News today.

The service had generated controversy within the legal profession. A spate of ethics opinions had concluded that lawyers may not participate in Avvo Legal Services. Within the last two years, eight states have issued such rulings: New YorkOhioPennsylvaniaSouth CarolinaNew JerseyUtahVirginia (pending Supreme Court approval), and Indiana.

Another state, North Carolina, drafted a proposed opinion approving participation in Avvo Legal Services, but the draft was sent back for further study.

Last month, as I reported here, the Illinois Attorney Registration and Disciplinary Commission published for comment its report that recommended loosening rules on attorneys’ participation in for-profit referral services such as Avvo Legal Services. Loosening the rules would help Illinois address the unmet legal needs of poor and moderate-income individuals in the state, the study said.

 Justice Kennedy – vassal to Lord Trump?

by George Conk

Shock and alarm followed the resignation of  Associate Justice Anthony Kennedy.   He created a vacancy that Donald Trump could fill before the fall mid-term elections that could bring a Democratic Senate majority.  Kennedy vaporized liberal illusions that he might hold out precisely to preserve the possibility that a moderate might succeed him after the November mid-term elections.

 As he left Kennedy again joined the 5-4 conservative majority this time in  Janus v. AFSCME eviscerating the finances of public employee unions, and  in Trump v Hawaii approved the President’s ban on travel from five Muslim majority countries, with North Korea and Venezuela thrown in to blunt the accusation of religiously motivated discrimination.
Suspicion soon began to mount when the retiring Associate Justice addressed his letter to”My dear President”.   Like a vassal seeking leave of his Lord Kennedy displayed a personal familiarity with the President who has waged a relentless attack on the justice system – courts, investigators, and prosecutors.   How could the Justice known as an apostle of civility  leave a clear path for a lawless vulgarian to replace him with an even more hardline justice than himself?

 

Source: OTHERWISE: Justice Kennedy – vassal to Lord Trump?

 

AVVO Ethics Bar Stands: New Jersey Supreme Court

Supreme Court Won’t Take Up Avvo Ethics Case

An opinion by New Jersey legal ethics authorities that deemed Avvo off-limits to lawyers in the state will not be reviewed by the state Supreme Court.

In an order dated June 1 and obtained by the Law Journal on Monday, the court denied a petition for certification by Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals.

The organization, called Responsive Law for short, had asked the court to review the June 2017 opinion, jointly issued by the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising and the Committee on the Unauthorized Practice of Law, which found that Avvo facilitates improper fee-splitting and may not be utilized by New Jersey lawyers.

Opposing the petition were the Attorney General’s Office, representing the committees, and the New Jersey State Bar Association.

Responsive Law executive director Tom Gordon said in a statement Monday that the court, “by summarily declining to review the decision … has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”

“According to the U.S. Supreme Court’s [North Carolina State Board of Dental Examiners v. Federal Trade Commision (2015)] decision, active supervision by a disinterested government agency is a prerequisite for antitrust immunity when policy decisions are made by market participants,” Gordon said. “The real losers here, though, are the people of New Jersey, who are being prevented from finding affordable lawyers online using the same tools they use to find doctors, babysitters, and mechanics.”

Now-former State Bar president Robert Hille, of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, filed a brief on behalf of the bar urging the court to pass on the case. The NJSBA issued a statement Monday from current president John E. Keefe Jr. of the Keefe Law Firm in Red Bank.

“The court’s decision to let stand the joint opinion is an important one that provides clarity for New Jersey lawyers and protects consumers,” Keefe said.

“The association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys,” he said, adding that the court’s denial of certification “has ensured that a client’s interests are paramount and that they are represented fairly and impartially by lawyers adhering to our long-established rules governing professional conduct and ethics.”

Representing the state was Deputy Attorney General Steven N. Flanzman. An email to an Attorney General’s Office’s spokesman didn’t get an immediate response Monday.

The June 21, 2017, opinion was issued in response to an NJSBA inquiry asking whether lawyers may “participate in certain online, non-lawyer, corporately owned services.” The inquiry named Avvo, LegalZoom and Rocket Lawyer specifically.

The shortcomings of LegalZoom and Rocket Lawyer could be fixed simply by registering with the state, the committees held. But they found ethical trouble with the very structure of Avvo’s “pay-for-service” programs. The opinion decreed that “New Jersey lawyers may not participate in the Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a nonlawyer in violation of Rule of Professional Conduct 5.4(a), and pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).”

According to the opinion, Avvo offers “Avvo Advisor”—through which customers buy 15-minute phone conversations with a lawyer for a $40 flat rate, of which Avvo keeps a $10 marketing fee—and “Avvo Legal Services,” which allows customers to pay flat fees to Avvo for legal services provided by affiliated lawyers, after which Avvo pays the lawyer but keeps a marketing fee.

“The participating lawyer receives the set price for the legal service provided, then pays a portion of that amount to Avvo,” the committees said. “The label Avvo assigns to this payment (“marketing fee”) does not determine the purpose of the fee. … Here, lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.”

The opinion also held that marketing fees lawyers pay to Avvo are not for advertising but amount to an “impermissible referral fee” by the definition contained in RPCs 7.2(c) and 7.3(d), and Avvo’s practice of holding the lawyer’s fee until the service is provided violates an attorney’s requirement to maintain a registered trust account per Rule 1:28(a)-2.

 Believe the Autocrat – Greg Sargent – The Plum Line – WaPo

Believe the Autocrat  – The Plum Line – WaPo

Source: OTHERWISE: Believe the Autocrat – Greg Sargent – The Plum Line – WaPo

A year of Special Counsel Robert Mueller’s investigation has produced many indictments and a tsunami of leads.  The corruption is unapologetic and gross.
And now a full scale attack is underway on the Department of Justice and the FBI.  We are watching a slo-mo Saturday Night Massacre as prosecutors and investigators are called up on the Presidential carpet.  As the President declares : I hereby demand…” that those investigating him and his associates be themselves investigated.  ​The slo-mo judicial dismantling of the New Deal pales​ in comparison. [See Epic Systems – goodbye 8 hour day]
The above post by Greg Sargent relies on a recently published history of presidential control of the Department of Justice by my Fordham colleague Bruce Green and Rebecca Roiphe.  They write

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

​We have a President whose ignorance of such norms is surpassed only by his contempt for them.​  And his political party has fallen in behind him with only meek dissent.
It is hard to conclude that there is anything more important to us as defenders of law’s integrity than the threat presented by Donald Trump.

How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

Source: OTHERWISE: How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

The furious tweets of Donald Trump that attorney client privilege is dead are repeated in the restrained language of his lawyers’ memorandum.

 As usual the best source of information is the primary source: the United States Department of Justice, whose memorandum (excerpted in the post above) explains how any documents protected by attorney client privilege will be handled.  In essence the process is to determine if documents seized  contain communications between attorney and client which relate to the representation. Confidentiality is protected – unless the communication is evidence of the attorney’s participation in a crime – in which case a judge’s review till be sought.  – gwc