Welcome to our 3d Ed and CasebookPlus!

Welcome back; it’s hard for me to believe it’s Fall semester already.  This summer, I taught a fully -asynchronous PR course @ Wake Forest University School of Law using our new 3d edition.

This new edition has several innovative components, for online courses and traditional courses, including multiple choice questions via CasebookPlus that students can take as they study the text, audio mini-lectures on particularly challenging or important content, and learning outcomes tracked to the multiple choice questions – great for formative assessment exercises!

We’ve also included new role-play simulations in each chapter.

Access sample syllabi (including for 2- and 3-credit courses) here, and email us (murphyme@wfu.edu) if you’d like the password to our power point slides for each chapter.

If it’s your first time using CasebookPlus, check out this tutorial.

Welcome!  We look forward to your feedback.

 

Welcome!

Welcome to our community of professional responsibility teachers! This web site provides teaching resources, ranging from syllabi and powerpoints to real time updates and videos. The web site accompanies our casebook Professional Responsibility:  A Contemporary Approach (4th ed. 2020). The Casebook uses the problem method and offers learning outcomes, multiple choice assessment questions, role plays and simulations, and an interactive online version that includes short audio lectures. Please feel free to share your ideas and resources with our community of adopters.

You may review the Table of Contents here.

We look forward to getting to know you and working with you and our fellow adopters.

Renee Knake Jefferson, Russell G. Pearce, Bruce A. Green, Peter A. Joy, Sung Hui Kim, M. Ellen Murphy,  Laurel S. Terry, & Lonnie T. Brown, Jr.

Summer PR Course – Week 1 Questions

In my summer asynchronous PR course @WFULawSchool, I had my students include a PR question they have as part of their intro discussion post.  It’s always interesting to see what students are thinking about with respect to PR, before class starts.  I put them together in a video for the students and talked through each one – here they are!  (with edits and all identifying info deleted)

 

NC’s First 2017 FEO Permits Subscriber Based Texts that Invite Subscriber to Call Lawyer

Last month, NC adopted 2017 FEO 1, finding:

(1) that lawyers may use subscriber based text services to send texts with links to the lawyers website; and

(2) it is not a violation of 7.3(a) if the subscriber has the option to reply to the text message as follows:

  • Texting Service: Have you or someone you know been injured at work? If so, type YES.
  • Subscriber: YES
  • Texting Service: Lawyer can help. May we contact you at this number? If so, type YES.
  • Subscriber: YES
  • Texting: Service Thank you. A representative will contact you soon.
  • If the subscriber replies YES to both questions, ABC Texting provides the subscriber’s cell phone number to Lawyer. Lawyer will then contact subscriber directly.

The committee also confirmed that it is not a violation of 7.3(a) if the second text message from  includes the lawyer’s phone number and an invitation to call the lawyer.

 

ABA Opinion Suggests Lawyer Must Understand More of the “How” of Technology to Satisfy the Rules

Yesterday, the ABA issued a formal opinion on attorney email encryption, providing that while encryption is not required always, it may be – and to determine if it is, a lawyer must understand certain things, including how information is transmitted and where it is stored.

Model Rule 1.4 may require a lawyer to discuss security safeguards with clients. Under certain circumstances, the lawyer may need to obtain informed consent from the client regarding whether to the use enhanced security measures, the costs involved, and the impact of those costs on the expense of the representation where nonstandard and not easily available or affordable security methods may be required or requested by the client. Reasonable efforts, as it pertains to certain highly sensitive information, might
require avoiding the use of electronic methods or any technology to communicate with the client altogether.

Great summary of (and link to) the opinion here.

H/T to Jim Calloway @ Law Practice Tips.

Thoughts on ABA Formal Opinion 476

When a lawyers tries to withdraw for a client’s failure to pay, the lawyer must take care to avoid breaching the Rule 1.6 duty of confidentiality, according to the December 2016 opinion. But what does this mean, practically speaking?  I see this as yet another tension between the law as a profession v. the law as a business.

If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.

More thoughts via the ABA Journal article Lawyers Should Tread Carefully Before Quitting a Troublesome Client.

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

Submissions and nominations of articles are now 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%3cmailto:slevine@tourolaw.edu>.  The deadline for submissions and nominations is September 1, 2017.

Two Examples this Week of Technology and Artificial Intelligence Promoting Access to Justice

Two examples in the news this week of the potential for AI to increase access to justice – and perhaps raise UPL issues?  My hope is that the academy and the profession will focus on how this helps the public, while allowing lawyers to practice to the top of their license.


First, a 19 year old in Britain launched a bot in New York and London that allows folks to appeal their parking tickets.  In April, the bot had a 64% success rate.  Up next: Seattle.
Note that the developer is also working on a bot to help refugees seeking asylum, as well as a bot for HIV positive individuals to better understand their rights in disclosing their medical status.  More here from Business Insider.


Second, Bloomberg reported Thursday that some countries are using automated dispute resolution tools for family law issues (divorce, child custody and support), condominium, landlord-tenant, and employment disputes.  The tool uses algorithms to guide individuals “through a series of questions and explanations to help them reach a settlement by themselves.”  Human adjudicators may be brought in if a settlement is not reached.

Teaching PR Online This Summer or Fall?

Or thinking about it?
Below is a piece I originally did for the Huffington Post Tech Blog, Dispelling Myths About Online Learning.  As always, I’m happy to discuss my experiences teaching professional responsibility online at Wake Forest.  Feel free to contact me!  murphyme@wfu.edu

Despite the growing number of virtual students, many academics still believe outcomes for online education are inferior to those of face-to-face instruction, according to Babson Survey Research Group’s most recent annual report, Online Report Card – Tracking Online Education in the United States.

In my experience, the opposite is true.

Many who doubt the effectiveness of virtual classrooms have not been exposed to thoughtfully designed, rigorous courses that use technology purposefully to engage students and achieve better learning outcomes. Following are some of the most common misconceptions about online learning.

Myth 1:  Online learning denotes a single model.

There are many, often contradictory, definitions of online learning.  When you read, think or talk about online learning, it is important to be specific. While there are endless possibilities, with new ones developing each day, there are two fundamental categories of which you should be aware: asynchronous and synchronous. These terms distinguish when the interactions between and among students and teachers occur.

In a fully asynchronous classroom, students work independently, and to some extent on their own schedule, although rigorous programs have regularly scheduled due dates to allow for meaningful professor feedback on formative assessments. Fully synchronous classes are online interactions that occur simultaneously between and among students and professors.  These may include real time video, and often all students can see the teacher, and vice versa.

Online courses may have both asynchronous and synchronous components; in addition, traditional classrooms may include components of online learning. We call these blended or hybrid courses; the flipped classroom is one example.

Myth 2:  It is impossible to connect in an online classroom.

Connection is important to promote student engagement, and therefore deeper learning and outcome achievement. Many who have no experience with online learning, or who have experience with poor quality online classrooms, assume that the physical distance necessarily creates an inability to connect among professors and students. In my experience, the opposite is true. Not only are students and professors shocked at how connected they are in a virtual course, but in fully synchronous learning venues, some students say it is an even more intimate learning experience than the physical classroom.

With thoughtful implementation, technology can actually increase connection. There are more ways to connect in the virtual classroom than in many physical classrooms, which can be large, impersonal and lack adequate audio or visual technology. Some of the tools I use for connecting with students online include: class websites and blogs; pre-course surveys to get to know the class, collectively and individually; class hashtags for social media; group collaboration with professor guidance; and implementation of user-friendly communication tools, such as Remind.com’s texting service, Google Hangouts, or Skype video chats.

In addition, more frequent, personalized communication with students, either through email, text, audio or informal video, can dramatically increase the connectedness of a virtual course.

Myth 3:  Online courses are commoditized and lack rigor.

Many professors and students alike assume that online learning means students can take as little or as much time as they need to complete assignments. This is not true. Quality online programs demand a high level of engagement, interaction and participation.

For example, the fully asynchronous courses I teach combine flexibility with interactivity and collaborative learning. Courses include pre-recorded videos and podcasts that I have created and produced specifically for my class. Students progress through units each week, with regular assignment due dates, peer collaboration and a high level of professor interaction and feedback, unmatched in many traditional classrooms.

With thoughtful implementation of the proper tools to achieve the desired learning outcomes, the virtual venue not only allows, but in many ways encourages, customization and personalization, the opposite of commoditization.  Student-centered instruction that allows for active learning prevents the course from becoming a spectator sport, promoting rigor as well as relevance to the learner.

4. Online learning is all about the technology, not the learning.

The use of technology in the classroom is not a new idea; my ‘80s elementary school classes were filled with film-strips, overhead projectors, and media carts with a single television and VCR. These technologies were used to expose our classroom in rural North Carolina to a broader world and therefore, enhance our opportunities for learning. While the capabilities of today’s technologies are certainly greater, the goals of their use should be no different.

Learning, not the delivery media, venue or other tool, should always be the driver. Good instructional designers and educational technologists begin by listening to the teacher, determining what the learning outcomes are, and selecting a tool only if it helps achieve those outcomes. When done properly, a professor’s ways and means are not lost but in fact enhanced by technology.

Lawyer Suspended for Using Info Divorce Client Obtained via Guessing Wife’s Password

The ABA Journal reports today that the Missouri Supreme Court suspended a lawyer for using the information obtained by the lawyer’s divorce client, who obtained the information by accessing the wife’s email without permission (husband guessed his wife’s email password).  The information obtained included:

  • current payroll documents of wife; and
  • a list of direct examination questions prepared by wife’s lawyer.

The court found that the lawyer violated the following Missouri Rules of Professional Conduct:

  • Rule 4-4.4(a), which prohibits a lawyer from using “methods of obtaining evidence that violate the legal rights” of a third party;
  • Rule 4-8.4(c) which prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation;”
  • Rule 4-3.4(a) which provides, in part, that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value;” and
  • Rule 4-8.4(d), which prohibits a lawyer from engaging “in conduct that is prejudicial to the administration of justice.”

The court noted that the lawyer had been disciplined five times previously.

You can find the opinion here.

Federal Circuit Recognizes Independent Patent Agent Privilege

This week, the Federal Circuit found that “patent agent”-client privilege exists independent from the attorney-client privilege, resolving a district court split, according to IPethics and INsights.

While the court recognized the “presumption against the recognition of new privileges,” including that “courts have consistently refused to recognize as privileged communications with other non-attorney client advocates,” it  found “that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.”

I find this decision particularly interesting in light of the increasing numbers of non-lawyer legal services providers.  While the privilege will no doubt remain sacred, the court’s reasoning did rely on the “clear congressional intent to authorize an agency to create and regulate a group of individuals with specific authority to engage in the practice of law,” a factor which will no doubt be relevant as our regulatory scheme increasingly embraces alternative legal service providers.

h/t to Wake Law Student and Patent Agent John Sears.

 

 

New Study Out: The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys

As a former Lawyer Assistance Program Executive Director at Lawyers Concerned for Lawyer in Massachusetts, I was distressed by the new study that reveals: (1) young lawyers are at an increased risk of problem drinking and mental health issues; and (2) overall these issues in the legal profession may be higher than previously thought.  The study was conducted jointly by the ABA Commission on Lawyer Assistance Programs (CoLAP) and the Hazelden Betty Ford Foundation.

According to the study:
  • 21% of licensed, employed attorneys are problem drinkers;
  • 28% struggle with some level of depression; and
  • 19% demonstrate symptoms of anxiety.
Each semester, I take a few minutes in PR to address the availability of LAPs for lawyers and law students.  And, I include coverage of Rule 8.3 at the same time. If you’re interested in talking points, feel free to email me – murphyme@wfu.edu.  I also have had LAP staff and members speak with my class, with great success.  Video conferencing makes this even easier today.  In addition, CoLAP has a range of resources, including links to LAPs in each state, speaker lists, and articles.

More on the study from the ABA here; from the ABA Journal here; and from the NYTimes here.  A copy of the study from the Journal of Addition Medicine is available here.

A JD Alone Does Not A Lawyer Make (so says the NC State Bar)

 

Conflict bw state reporting statute and binding RPC creates risk for lawyers

Let’s revisit a 2015 Indiana State Bar Legal Ethics Committee Opinion (see our previous post here).  Contemporary Professional Responsibility co-author Peter Joy explains in the ABA Journal this month how a conflict between a state statute and a binding Rule of Professional Conduct may create risk for lawyers.  The Opinion covers an Indiana statute that requires immediate reporting by those “who have reason to believe” that a child is an abuse or neglect victim; lawyers are not exempt from reporting.  The ethics opinion considers how this can be squared with Rule 1.6, finding, as Professor Joy explains, “that a lawyer only has to follow the law and report child abuse or neglect necessary ‘to prevent reasonably certain death or substantial bodily harm,’ which is the standard in Indiana’s confidentiality rule for permissive reporting of a client’s confidence.

This is a great teaching example of how other rules governing lawyers – beyond the Rules of Professional Conduct – may create confusion, or even a conflict with the binding RPC. A good example for Chapters 1 or 4.

 

Semester Resources

Welcome to 2016 and a new year of PR.  For those of you teaching this semester, remember the materials available (syllabii, ppt templates, etc) under the Teaching Resources tab of our website.

We can also provide you with the questions and answers/explanations for the textbook multiple choice questions.  These can be delivered directly to your TWEN site or in other formats for incorporation in your school’s Learning Management System.

Finally, if you want to make electronic copy only purchases available to your students, you may do so using this link.

We welcome your feedback!  murphyme@wfu.edu

NC State Bar & LegalZoom Consent Decree re UPL Available

Last month, the North Carolina Business Court entered a Consent Judgment in litigation between the North Carolina State Bar and LegalZoom.com.  (LegalZoom filed that lawsuit seeking a declaratory judgment that it is not engaged in the unauthorized practice of law (in violation of the NC General Statutes);  the State Bar filed a counterclaim alleging that LegalZoom’s activities constituted the unauthorized practice of law.)  You may find the State’s Bar summary here and the consent judgment here.