AALS PR Section Newsletter

As Chair of the Association of American Law Schools Section on Professional Responsibility, I recently wrote this note in our PR Section Newsletter, which you can download here. The newsletter, organized by Professor Ben Edwards, is packed full of information about the Section, new scholarship in PR, and other helpful items. Enjoy!

***

I hope this newsletter finds you safe and well amidst a season of closings and cancellations brought on by COVID-19. As I write this note, we are on week 10 of quarantine here in our home, where my partner is trying to operate his law firm and our middle-school- and high-school-aged children have been teaching themselves cello and calculus, among other things. I imagine all of you, like me, moved your classes online in March and became a much-needed support system for our students who are facing unprecedented challenges. We count ourselves lucky because, so far, we have remained healthy but I am mindful that this may not be the case for many of you. It is strange times, indeed. Thank you for taking a moment in all of the coronavirus chaos to read this. I have to admit, I’ve been procrastinating about writing to all of you because I have struggled to know exactly what to say in my capacity as the Chair of the Section on Professional Responsibility at a time of such loss and uncertainty.Read More »

Call for Papers – Legal and Judicial Ethics in the Post-#MeToo World – AALS Annual Meeting

Call for Papers

AALS Section on Professional Responsibility 2021

Co-Sponsored by AALS Sections on Civil Rights,

Employment Discrimination Law, Leadership, and Minority Groups

Legal and Judicial Ethics in the Post-#MeToo World

The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g)  to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond.  Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.

Topics discussed at the program might include:

  • Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment? 
  • Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
  • What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
  • Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
  • If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
  • What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
  • Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
  • How should reporting systems be improved?

To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at rknake@uh.edu Preference will be given to completed papers, though works-in-progress are eligible for selection.  The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses.  Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.

 New Jersey Supreme Court seeks Comment on the Duty of Confidentiality and Wrongful Convictions

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.

Source: OTHERWISE: New Jersey Supreme Court seeks Comment on the Duty of Confidentiality and Wrongful Convictions

Toward the Abolition of Slavery under the Aegis of Islamic Law – The Comparative Jurist

Source: OTHERWISE: Toward the Abolition of Slavery under the Aegis of Islamic Law – The Comparative Jurist

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)

Utah Advances the Conversation: Future of Lawyering to Include NonLawyers?

Source: OTHERWISE: Utah Advances the Conversation: Future of Lawyering to Include NonLawyers?

by Legal Ethics in Motion

The Utah Supreme Court recently posted its Standing Order 15 and proposed amendments to its Rules of Professional Conduct 5.4 (Professional Independence of a Lawyer) and 1.5 (Attorney Fees), which pave the way for  collaboration between lawyers and non-lawyers to both provide legal services and share revenue.
Utah Supreme Court Justice Constandinos “Deno” Himonas spoke to the ABA Journal and explained, “We are envisioning a combination of lawyer and tech people working together to use the platforms of the 21st century in providing legal services.” He also stated that the fundamental ethical duties, such as client confidentiality will be maintained.
Utah is proposing a regulatory sandbox so that its Supreme Court can maintain oversight of collaborative proposals. Justice Himonas noted that COVID-19 has further revealed the need for lower cost legal services and regulatory reform.
The Utah proposals are posted and open for comment for 90 days.
Stay tuned for what may become one of the most significant events in the U.S. legal profession’s history.

Message to SCOTUS: Maximize voting and public health – Wisconsin teaches us

 

Source: OTHERWISE: Message to SCOTUS: Maximize voting and public health – Wisconsin teaches us

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.

KEEP READING

 

DOJ Inspector General backs dismissed IG Atkinson

Source: OTHERWISE: DOJ Inspector General backs dismissed IG Atkinson

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…

Federal Defenders: 2d Circuit directs mediation re Bureau of Prisons obstructiveness of client access

Source: OTHERWISE: Federal Defenders: 2d Circuit directs mediation re Bureau of Prisons obstructiveness

2d Circuit judges John Walker, Barrington Parker, and Susan Carney write:
“the Federal Defenders have raised claims of the utmost gravity about the lawfulness of the BOP’s unilateral curtailment of pretrial detainees and others confined…a dramatic challenge is presented by COVID-19…The impact of this recent emergency on jail and prison inmates, their counsel (in the lead the Federal Defenders), the United States Attorneys, and the BOP,including the wardens and personnel…is just beginning to be felt.”
The Circuit panel directed the District Judge to appoint as a mediator “an individual with the stature, experience, and knowledge necessary to meditate this weighty dispute and ultimately facilitate the adoption of procedures for dealing with ongoing and future emergencies, including the COVID-19 outbreak.” – GWC See opinion  HERE

Judge’s Criticism Of Trump Could Spur Misconduct Review – Law360

Source: OTHERWISE: Judge’s Criticism Of Trump Could Spur Misconduct Review – Law360

Federal judge Lynn Adelman (ED WI) who wrote in the Harvard Law & Policy Review an article titled “The Roberts’ Court’s Assault on Democracy”. Adelman defended himself in an interviewed by Law 360.  Adelman  sees his article as consistent with a judge’s role of commenting on the law – “speaking writing, and teaching” about the law and legal system as Canon 4 of the Code of Conduct of United States Judges frames it.

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.

– GWC

Law360 (March 11, 2020, 7:21 PM EDT) — A Wisconsin federal judge mJudge’s Criticism Of Trump Could Spur Misconduct Review – Law360ay find himself in hot water after publishing a law review article critical of Republicans and the U.S. Supreme Court, with an ethics expert forecasting misconduct complaints and a former federal judge predicting the article will lead to recusal demands.

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.”

 

Trump should keep hands off courts – Philadelphia, Pennsylvania Bar Associations

Source: OTHERWISE: Trump should keep hands off courts – Philadelphia, Pennsylvania Bar

“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

@realDonaldTrump

In restrained but firm language two leading bar associations have called attention to Donald Trump’s attacks on the judicial system  The Philadelphia Bar declared in a recent statement “Recently, we have seen a course of conduct, including communications meant to exert undue influence on the judiciary, that seems intent on undermining the rule of law and disrupting the system of checks and balances. Such attacks are dangerous in the extreme. We cannot allow them to continue.
“We call for an end to these unwarranted attacks on the judiciary and for all Americans to speak up in defense of the Constitution and our democratic principles.”
In similarly constrained language the Pennsylvania Bar Association declared:
“The integrity of our system of justice requires that this equal branch of government be free from outside influence. In particular, we must assure that the independence of the judiciary is always respected and never diminished.”

What does it mean to “induce” or “encourage” unlawful presence? – SCOTUSblog

Source: OTHERWISE: What does it mean to “induce” or “encourage” unlawful presence? – SCOTUSblog

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.

***Put simply, the issue is this. 8 U.S.C. § 1324(a)(1)(A)(iv) imposes criminal penalties on any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence in is or will be in violation of law.”
Is this, as the government argues with the support of a single amicus brief, a narrow provision prohibiting criminal solicitation and aiding and abetting? Or is it, as the U.S. Court of Appeals for the 9th Circuit found and a range of amici argue, a constitutionally overbroad statute criminalizing a wide range of protected expression, including political speech, attorney representation, charitable and religious counseling, support and outreach, and grandmothers urging their foreign-born grandchildren not to leave them?***

The President is an office-holder, not a sovereign – Bernadette Meyler //Harvard L Rev

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.

Source: OTHERWISE: The President is an office-holder, not a sovereign – Bernadette Meyler //Harvard L Rev

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

 

New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

Source: OTHERWISE: New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

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.

Standing Up for Public Defenders

Source: OTHERWISE: Standing Up for Public Defenders

On January 6 the New Jersey Supreme Court heard oral arguments in this matter, which considers whether an attorney acting on behalf of the government to represent a private client in a litigated matter, where representation is provided as a constitutional right, is entitled to protections under the Tort Claims Act (TCA) when sued for legal malpractice. George Conk, arguing on behalf of the New Jersey State Bar Association, urged the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims:

Our fundamental objectives are to serve the public by protecting the integrity, competence, and vitality of the Bar; help to assure citizens access to justice and adequate remedies, and to assist the Courts in their mission to guarantee that justice is done. This court granted certification to answer two questions:[1] Are legal malpractice claims exempt from the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and

[2] Is plaintiff’s “loss of liberty” damages claim subject to the verbal threshold of the TCA?*

The answer to the first question must be NO.  Lawyers such as full and part time Public Defenders serve the State by whom they are employed.  They help to vindicate the Constitutional obligations of due process, equal protection, and fair trials.  But such public servants – full or part time – may falter and thereby give rise to professional liability claims.
Competent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs.  Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill-served. The Tort Claims Act blocks frivolous claims via its verbal threshold (59:9-2), limits certain damages [e.g. grants credits for collateral sources, pre-judgment interest.  The Act bars civil punitive damage awards against the State and any other public entity.  But compensatory damages are not capped.  Costs of defense are beyond the capacity of staff PDs and of the typically young, free-lance pool attorneys.

Antonio Chaparro Nieves was represented by a public defender when he was convicted of several crimes for which he served 12 years and four months. He was ultimately released, the charges were dismissed on his petition for post-conviction relief, and he has recovered under the Mistaken Imprisonment Act. The trial court ruled that the procedural requirements of the Tort Claims Act do not apply to legal malpractice claims. The Appellate Division reversed, holding that the Office of the Public Defender is a public entity and that public defenders are public employees who fall within TCA’s immunities and defenses.
“[T]he qualified immunity and indemnification afforded to lawyers under the Tort Claims Act is an important guarantee of the availability and independence of counsel who provide constitutionally mandated representation to those who cannot afford counsel, whether a lawyer is acting as a direct employee of the state, as a pool attorney hired through a state agency, or on a pro bono basis assigned by the Court,” said the NJSBA in its brief. While the NJSBA encouraged the Supreme Court to expand that immunity not just to public defenders, but also to pro bono attorneys assigned from the Madden list, the Supreme Court declined to hear the NJSBA’s arguments relative to Madden list representation.
* The Bar Association did not address the second question.

 For Guidance on Judiciary Party Balance, Look to NJ | Editorial – New Jersey Law Journal

Source: OTHERWISE: For Guidance on Judiciary Party Balance, Look to NJ | Editorial – New Jersey Law Journal

by the Editorial Board

Delaware’s constitutional guarantees of a bipartisan judiciary fail the test of the First Amendment, the United States Court of Appeals for the Third Circuit held recently in ADams v. Governor of Delaware.
The state’s Constitution limits qualification of state Supreme Court to members of the two “major” political parties. No more than a bare majority of judges associated with a party may serve. A different provision provides that no more than a bare majority of Superior Court judges may be from the same party. The result is that none but Democrats and Republicans serve the Delaware courts. A sometime-Democrat, sometime-independent lawyer James Adams challenged the status quo because as an independent he was disqualified from seeking judicial office. The Third Circuit in an opinion by Julio Fuentes rejected the governor’s argument that because judges are policymakers he is free of constitutional restraints and can appoint who he chooses from among the members of the major political parties in Delaware.

Lawyers have the right to change firms: ABA Formal Opinion 489

Source: OTHERWISE: Lawyers have the right to change firms: ABA Formal Opinion 489

Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm.

News from the Florida Keys

An assistant state attorney in Monroe County (The Florida Keys) has just agreed to a plea in which she will use her law license for one year as a result of prosecutorial misconduct. According to the article in the Miami Herald (December 5, 2019), Colleen Dunne withheld evidence from defense attorneys as to three recorded phone calls between the defendant and his son.  The case will also result in her termination from her job as an assistant state attorney.  The plea and sanctions are still subject to review by the Florida Supreme Court.

https://www.miamiherald.com/news/local/community/florida-keys/article237994529.html