A recent blog post asks whether William Burck of Quinn Emanuel can ethically represent Steve Bannon, Reince Priebus, and Don McGahn in connection with the Mueller investigation. The blog post identifies a number of important issues, but the analysis is incomplete. Although Burck’s representation appears to create a conflict under Rule 1.7(a), Burck could continue the representation under Rule 1.7(b) if he “reasonably believes that [he] will be able to provide competent and diligent representation to each” and each client provides informed consent. While the public does not — in my view — know sufficient facts to determine whether Burck can reasonably represent all three clients, a complicating factor is that McGahn appears to be giving Burck and Bannon direction as to whether executive privilege applies to Bannon’s testimony.
Did Jeff Sessions violate Rule 1.11 if he participated in the decision to fire Jim Comey? The Rule 1.11 issue depends on whether the firing implicated Comey’s investigation of the Russian connection to the Trump campaign. If so, does Sessions’s participation in the campaign and/or personal contacts with the Russians require him to withdraw under Rule 1.11? See, for example, this column on Sessions and the Comey firing.
Richard Emery, a name partner in a well-known New York City law firm, is also Chairman of New York City’s Civilian Complaint Review Board, which investigates complaints against police officers. The New York Daily News reports that the City’s Conflict of Interest Board permitted him to “keep his name on the firm’s shingle, and [granted him] a ‘waiver’ allowing his firm to represent plaintiffs in lawsuits against the City.” A spokesman for the CCRB added that “Mr. Emery recuses himself from any matters in which the firm represents a party associated with the CCRB,” but the Daily News reports that “[n]either the Conflicts Board, nor Emery, would provide a copy of the waiver.” Although the Board may have been applying government ethics law, Emery’s recusal from matters involving his firm would appear to satisfy Rule 1.11 (d). Similarly, his law firm’s representation of plaintiffs who formerly had matters before the CCRB would appear to satisfy Rule 1.11 (a)(2) so long as “the appropriate government agency gives its informed consent, confirmed in writing,” as happened here. Note that the language of the Rule 1.11 refers to former government officers but the comment expressly includes current government officers with regard to former matters. In addition, even without consent, Rule 1.11(b) would permit the representation so long as Emery is timely screened, and the agency receives timely notice.
Judge Jesse Furman of the Southern District of New York recently refused to permit a plaintiff in a civil rights action from substituting a new lawyer on the ground that the lawyer was barred under Rule 1.11. Furman found that lawyer “participated personally and substantially as a public officer” (Rule 1.11) in investigating plaintiff’s bias complaints when lawyer was Senior Director for Equal Employment Opportunity — not a lawyer position — at plaintiff’s employer agency.
The New York Times describes how the practice of providing of medical advice, including the prescription of medicine, through the internet is expanding, and at the same time meeting resistance from some doctors. Although law firms already provide advice to businesses and wealthy individuals through video communication, could internet video calls become a common way for lawyers to meet, and provide services to, middle income clients and small businesses? These developments raise issues relating to creation of the lawyer-client relationship, competence/malpractice, confidentiality, conflicts, and future directions for business and technology of legal practice.
A Womens Donor Network Study reported in the New York Times finds that “Sixty-six percent of states that elect prosecutors have no blacks in those offices, . . . 95 percent of the 2,437 elected state and local prosecutors across the country in 2014 were white, and 79 percent were white men.” At the same time, “white men make up 31 percent of the population of the United States.” This study is relevant to a number of topics in the course, including the responsibility of lawyers for ensuring that the legal system provides equal justice for all and the special duties of prosecutors.
In class, I have previously asked whether Gibson, Dunn’s representation of the Governor’s office raised conflicts of interest (for contrasting perspectives see here and here) or waived confidentiality by issuing a public report based on evidence gathered during the representation. The latter question may come up in court in the context of defendant Bridget Kelly’s subpoena of the Gibson, Dunn interviews and notes underlying the report. Given that the trial is currently scheduled for the fall, these facts can also be used for timely hypotheticals.
A new study of lawyers’ political contributions (h/t Taegan Goddard’s Political Wire) shows that almost 75% went to Democrats. These results are similar to those discussed in Chapter 8, pp.804-15, which raises the question of whether lawyers’ role conception influences their political identity.
See Lectures Aren’t Just Boring, They’re Ineffective, Too, Study Finds, a Science Magazine article describing research conducted by Prof. Scott Freeman and colleagues at University of Washington. H/T Ross Miller
If you are a fan of Breaking Bad — or simply looking for popular culture examples of egregious lawyer conduct — the Aizman Law Firm has prepared a list of 69 crimes committed by Saul, the lawyer in Breaking Bad. These fact situations of course raise additional legal ethics issues. H/T Ross Miller.
Judge sends lawyer email mentioning that he and his colleagues think lawyer is terrific. Lawyer shares the email “with no fewer than 35 existing or propsective clients.” Judge resigns. Court reprimands lawyer. See the story in Ars Technica. H/t Joel Reidenberg. Great issues for marketing ethics and judicial ethics.
Prof. Sam Levine of Touro has asked us to announce that the Professional Responsibility Section of the AALS has given the fifth annual Fred Zacharias Award for Scholarship in Professional Responsibility to Russell M. Gold, for Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591 (2014).
Inspired by Baker and Hostetler’s representation of House Republicans in their suit against President Obama, Jimmy Fallon’s Tonight Show prepared this parody ad. It appears at 2:43 of the clip. H/t to Joe Patrice of Above the Law.
See this Above the Law story.
The New York Times highlights a study finding that active learning, including the use of online exercises, helps “black students cut in half their score gap with white students” and “eliminat[e] the gap between first-generation students and other students.”
The error below, from p. 28 of the Teacher’s Manual is that he correct answer should be (B) — this is not a unauthorized practice of law. The explanation is correct and provides the rationale for an answer of B. The purpose of the question is to highlight the Rule 5.5(d)(1) exception for in-house counsel, as well as the difference between Rule 5.5(d)(1) and Rule 5.5(c) which requires that the out of jurisdiction practice be temporary in order to qualify for one of its exceptions to unauthorized paractice. Of course, if the in-house work does require “pro hac vice admission,” then the Rule 5.5(d)(1) does not apply unless the “lawyer is authorized by federal or other law or rule to provide [services] in [the] jurisdiction” per Rule 5.5(d)(2).
[Question 2-13, Casebook p. 58]
Does Joan commit UPL if she leaves F&I to become in-house counsel at Monolith, Inc., located in Sirius?
Even though this position is not temporary, and therefore does not fall under the exceptions in Rule 5.5(c), it does fall under the exception in Rule 5.5(d)(1) for services “provided to the lawyer’s employer or its organizational affiliates [that] are not services for which the forum requires pro hac vice admission.”
This ad appears to be an homage to the famous Apple “Great Thinkers” ad. Worth considering for Chapter 2 (nonlawyer practice).