Reminder – Fred C. Zacharias Memorial Prize Nominations

Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020.  The prize will be awarded at the 2021 AALS Annual Meeting.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2020.

Our Co-Author Russ Pearce co-authors commentary for ACLU

Not Just a Bad President, Trump is a “Holmesian Bad Man.” Act Accordingly.

Donald Trump’s unbound corruption and authoritarianism will require more than just ordinary checks and balances.
(you can find the original here)

“If you want to know the law, you must look at it as a bad man does, who cares only for the material consequences,” wrote legendary Supreme Court Justice Oliver Wendell Holmes, “Not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Donald Trump is a Holmesian bad man, and an even worse president, pushing the bounds of corruption and authoritarianism, unbound by norms, the rule of law, a sense of shame, or even care for others. To deal with such a bad man and bad president — one who truckles to adversaries like Russian President Vladimir Putin, flouts Congress, swims in self-enrichment, and fails to take meaningful action as Americans die by the tens of thousands on his watch — will require more than the ordinary processes, checks and balances, and honor that have guided and constrained other presidents.

Fortunately, Trump’s most recent egregious trial balloons (or warning shots) about subverting the election drew pushback from even his supporters, such as the co-founder of the Federalist Society, who called Trump’s tweet “fascistic” and “itself grounds for … immediate impeachment.” But his regime’s many efforts to repress the vote and discredit and undermine the election continue unchecked, abetted by Senate Majority Leader Mitch McConnell’s refusal to take up election security and funding bills passed by the House, and his Postmaster General’s ongoing sabotage aimed at impeding the mail-in voting that will surge because of the pandemic Trump has exacerbated.

Calm may return now to Portland, Oregon, as Trump has begun to withdraw the federal paramilitary storm troopers who just recently were sowing chaos, seizing protesters off the streets, and using force, such as rubber bullets and tear gas, without probable cause or the consent of local authorities. But Trump and his confederates, including Attorney General William Barr and Acting Homeland Security Secretary Chad Wolf, continue to threaten this unconstitutional use of force in even more cities, ginning up images for Trump’s campaign ads and perhaps even road-testing tactics to remain in power in the event Trump loses the presidential election.

This is “performative authoritarianism,” according to historian Anne Applebaum. “That these tactics are not ‘totalitarian’ doesn’t make them legal, acceptable, or normal … Citizens’ rights [were] violated in Portland. People have been hauled off the streets into unmarked vehicles.”

Trump has shown again and again that, as a Holmesian bad man, he will do whatever he can get away with. It is a lesson Trump learned from his lawyer and mentor, Roy Cohn, as testified to by his lawyer and fixer Michael Cohen (now “Individual-1’s” nemesis). The tactics were honed during Trump’s career as a discriminatory and abusive developer and landlord: When dealing with tenants, contractors, and investors, do not honor your agreements and legal, let alone ethical, obligations. Don’t worry whether you have a legitimate cause of action or defense. Rather, flout norms and fairness, manipulate deadlines, drag out payments and processes, force litigation, make remedies and responses costly and cumbersome, overwhelm with falsehoods and fatigue, grind people and institutions down with the system — in short, break the law as you please, while using the law and legal procedures themselves as tools of abuse and evasion of accountability.

Civil society groups like the ACLU and Protect Democracy have been doing what they can through public denunciation and lawsuits that challenge Trump’s abuses in Portland and nationwide, exposing illegal surveillance of Americans and Trump’s use of unaccountable officials such as Wolf. But it is not enough to deplore, to protest, or to litigate. Trump’s tactics, whether in New York or in Washington, will not be defeated solely by appeals to moral or legal obligations. Nor is Trump acting alone. The attorney general, the Senate (in the grip of McConnell and a cowed and complicit Republican majority), and too many “acting” officials, conscienceless collaborators, and pliant enablers have abetted Trump in straining and eroding our democratic system.

“Democracy is not a state. It is an act,” our late hero John Lewis exhorted from his deathbed. To confront and defeat authoritarianism, performative democracy requires all patriotic defenders of the Republic to act — and that means act effectively. We should be mindful, as Holmes wrote, that “A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.” The power centers at every level in our constitutional system must show they mean business by pushing back and imposing costs using the full measure of their powers under the law.

What, then, should those with political authority and power do?

In cities like Portland, when federal paramilitaries seize people off the street or use violence against them, they commit crimes. State and local officials should charge them and arrest them, as prosecutors in Baltimore and Philadelphia have said they would do. Would Trump challenge such efforts in court? Probably. Might these efforts lead to standoffs between local police and the paramilitary? Perhaps. But criminal charges would shift the burden on to the forces of authoritarianism and send a message that those who violate the law in Trump’s name are themselves vulnerable to prosecution.

In Washington, it’s way past time to meaningfully assert congressional oversight and power. Regrettably, the Republican Senate has stood silent during, and the Democratic House of Representatives has too often allowed, Trump’s disregard of Congress’ spending enactments, the Senate’s role in confirming officials, and even the most basic requests for information necessary to congressional oversight. Even on the rare occasion when the House has defended Congress’ constitutional authority, these exertions have been ineffective and dilatory, leaving it to courts to adjudicate, let alone enforce its halting assertions.

Congress should wield its power of the purse to strip funds for illicit operations by corrupted agencies. Going further, why shouldn’t the House hold Trump’s defiant henchmen in contempt, fine them, and have the House’s Sergeant at Arms place them under arrest? Would the power of Congress be challenged in court? Probably. Might there be confrontations between the Sergeant at Arms and Trump’s minions? Perhaps. But full use of Congress’ lawful powers to stand up to a bully and his gang, to push back against a bad man, is the only way for Democratic and even Republican members of Congress to show that they give a damn about liberal democracy, and are not merely sputtering ineffectually at shameless and unconstitutional obstruction.

Nor is it only our members of Congress, governors, state attorneys general, mayors, and local prosecutors, who must act. It is we, the people who are the necessary and ultimate defenders of democracy. Like the diverse patriots protesting under the banner of Black Lives Matter, or the “Wall of Moms” in Portland, we must stand up, speak out, demonstrate, and put pressure on decision-makers. And, above all, we must vote.

Finally, there must then be a lawful reckoning — a full exposure of the corruption, complicity, and lawbreaking that have marked this regime from day one. It must be made clear to all who enable this bad man and bad president that they will be held accountable; shamed in history, in their social circles, and in the eyes of their fellow citizens; obliged to disgorge tax returns, campaign finance records, emoluments, and ill-gotten profits and prestige; prosecuted and fined or jailed where appropriate; and made to pay the price of betrayal of the American people, our values, and the rule of law that our Republic depends on.

Any hope of deterring Trump and his accomplices and enablers now — and even more importantly, building America back better when he is repudiated and gone — requires acting effectively in ways that a bad man can understand, and that the good demands.

****

Russell Pearce holds the Edward & Marilyn Bellet Chair in Legal Ethics, Morality & Religion at Fordham University School of Law. His college roommate, Evan Wolfson, teaches law and social change at Georgetown Law and at Yale, and serves on the advisory board of Protect Democracy.

11th Annual Fred C. Zacharias Memorial Prize

Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020.  The prize will be awarded at the 2021 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2020.

10th Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility Winners

The winners have been selected for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.

This year’s co-winners are Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019), and Jessica A. Roth, The “New” District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019).

The award will be presented at the AALS Annual Meeting in Washington, D.C., in January.

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility – Call For Papers Reminder

Submissions and nominations of articles are being accepted for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2019.  The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2019.

Submissions & Nominations – Fred C. Zacharias Memorial Prize for PR Scholarship

Submissions and nominations of articles are being accepted for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2019.  The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2019.

The Challenges & Rewards of Teaching Legal Ethics by Bruce A. Green

Our co-author Bruce A. Green has a terrific piece in the current volume of The Professional Lawyer titled “The Challenges and Rewards of Teaching Legal Ethics.” As a newer member of the PR community, I can’t agree enough with Bruce’s recognition of the support of the community of PR professors. Thank you all.

Don’t miss this article!

 

Materials on Federal Judicial Ethics for Your Class

My students have been quite interested in the complaints filed against now-Justice Brett Kavanaugh, so I prepared some materials for our class today. I have a set of slides I’m happy to share – email me @ murphyme@wfu.edu.  For quick research, two pieces I can recommend, both from Russell Wheeler @ the Brookings Institute, are the recent short but concise and clear summary article “What’s happening with the ethics complaints against Brett Kavanaugh?” along with 56 Ariz. L. Rev. 479 (2014), A Primer on Regulating Federal Judicial Ethics.

ABA Formal Opinion 483: Lawyers’ Obligations After an Electronic Data Breach or Cyberattack

This week, the ABA released a formal opinion clarifying (somewhat) the obligations lawyers have when a data breach occurs involving (or having a substantial likelihood of involving) material client information.

Just in time for Cybersecurity Awareness month 2018.

You can find Formal Opinion 483 here.

UPDATED POST: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility – Call for Nominations

Submissions and nominations of articles are being accepted for the ninth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2018.  The prize will be awarded at the 2019 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu<mailto:slevine@tourolaw.edu>.  The deadline for submissions and nominations is September 1, 2018.

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility – Call for Nominations

Submissions and nominations of articles are being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017. The prize will be awarded at the 2018 AALS Annual Meeting in San Diego.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu<mailto:slevine@tourolaw.edu><mailto:slevine@tourolaw.edu>.  The deadline for submissions and nominations is Sept. 1, 2017.

New UPL Complaint Against LegalZoom

A new complaint this week against LegalZoom for the unauthorized practice of law, this time from LegalForce RAPC, a patent and trademark filing firm.  The complaint alleges that non-lawyer “trademark document specialists” “provid[e] legal advice to the plaintiffs by selecting classification and modifying the goods and services description from the template thereby applying specific law to facts.”

More from the ABA Journal.

Guidance for Legal Services Lawyers on Advising w/ Nonlawyer Professionals

A preview of November’s ABA Journal Ethics piece by textbook co-author Bruce Green, discussing New York City Bar Association’s Professional Ethics Committee’s recent Formal Opinion 2017-4, which illustrates how legal services lawyers can help clients navigate the legal complexities of Medicaid while leaving it to the clients’ caseworkers to provide other necessary help.

Read the full article, which interprets ethics guidelines based on Rules 1.2(c) and 6.5.