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.
The ABA Journal has a nice summary of the recent Seventh Circuit decision affirming the lower court’s dismissal of the malpractice lawsuit against Mayer Brown, which represented General Motors, for the erroneous release of a 1.6 billion dollar security interest against General Motors. The plaintiffs were the lenders whose security interests were released.
The Court held that Mayer Brown didn’t owe a duty to third parties who aren’t clients and that Mayer Brown’s representation of JPMorgan Chase Bank in different matter did not create a duty of care in the loan/security interest matter. According to the Court, Plaintiff had offered 3 theories as to why Mayer Brown owed a duty of care to plaintiffs: (a) JP Morgan was a client of Mayer Brown in unrelated matters and thus not a third‐party non‐client; (b) even if JP Morgan was a third‐party non‐client, Mayer Brown assumed a duty to JP Morgan by drafting the closing documents; and (c) the primary purpose of the General Motors‐Mayer Brown relationship was to influence JPMorgan.
Among other things, the Court stated: ““Consider the consequences of the rule plaintiffs advocate, that a law firm owes a duty of care to a party adverse to its client because the adverse party is a client in unrelated matters and has waived the conflict of interest.” The Court’s opinion is here.
The American College of Trust and Estate Counsel (ACTEC) has released the third edition of its book with sample engagement letters: Engagement Letters A Guide for Practitioners (3rd ed. 2017). It is also available as a free pdf. These samples can be useful when teaching Chapter 2, Section III on Creating the Lawyer-Client Relationship. (Hat Tip to the Elder Law Prof Blog for this news item.)
P.S. For those who don’t know, ACTEC has also issued commentaries on the Model Rules.
From today’s New York Times:
The Supreme Court is taking up the case of a longtime U.S. resident who is facing deportation to South Korea after pleading guilty to a drug crime based on his lawyer’s bad advice.
The justices are hearing arguments Tuesday in an appeal by Jae Lee, who has lived in the United States for 35 years and has never been back to South Korea since coming to the United States when he was 13.
The case has taken on increased importance because President Donald Trump has promised to step up deportations, with a special focus on immigrants who have been convicted of crimes. The American Bar Association has estimated that one of every 10 criminal defendants is not an American citizen.
Lee agreed to plead guilty to possession of ecstasy with intent to distribute after his lawyer, Larry Fitzgerald, assured him that doing so would not make him subject to deportation. The lawyer was wrong.
The issue in Lee’s appeal is whether the lawyer’s recommendation to take the deal offered by prosecutors was so bad that it amounts to a violation of Lee’s constitutional right to a lawyer.
Both sides agree that Fitzgerald’s performance was deficient in representing Lee. The Supreme Court ruled in 2010 that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation.
But Lee almost must show that the bad lawyering mattered to the outcome of the criminal case.
Full article here.
Unfortunately, my slides for the section of Chapter 2 relating to the representation of difficult and mentally ill clients continues to grow each year with the tragic recurring incidents in our national news.
This year’s update is the trial of Dylann Roof, charged with the mass shooting in a Charleston Church in June, 2015.
Dylann Roof’s self-representation, both in the guilt and sentencing phases of his case, raises fascinating ethical and constitutional questions. The case has been well-covered in the New York Times in recent weeks.
See this interesting article by UM Law Professor Scott Sundby in the Huffington Post (January 4, 2017), relating to the constitutional questions raised by his self-representation, particularly in the death penalty phase of the case.
I’m wrapping up Chapter 2 today, teaching the pieces by Luban and Mukasey/Filip on the torture memos that appear at the chapter’s conclusion. This article from Clare Keefe Coleman has been helpful in framing the discussion: Teaching the Torture Memos: “Making Decisions Under Conditions of Uncertainty,” 62 J. Legal Educ. 81 (2012). Abstract follows the jump.Read More »
The ABA Journal and Law.com have reported the story of a San Diego lawyer who was sentenced to five years in prison for using his IOLTA account to facilitate money-laundering activities. In his plea agreement, attorney Medina admitted that he used his IOLTA account for the receipt, transport, and transmission of cash to international destinations and that he “knew or had reason to know that the cash transactions described [therein] were proceeds of unlawful activity, or were intended to promote unlawful activity.”
This new story can be used in Chapter 2 when teaching Rule 1.2(d), which states that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent….” Although PR profs cannot possibly teach the substantive law of all crimes, I think it is important to make sure that our students are familiar with 18 U.S.C. § 1956. Among other things, § 1956 makes it a felony “to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” This means that activity that is perfectly legal in one context (such as forming one or more corporations) may be illegal if the purpose of that otherwise legal conduct is to hide the location or source of the proceeds of crime. (The 60 Minutes/Global Witness videos and the Panama Papers leak can provide useful hypos for discussion).
The San Diego case shows students that lawyers who assist money laundering activity face criminal law sanctions, as well as disciplinary sanctions under Rule 1.2(d). I found it noteworthy that the plea agreement with Attorney Medina recited that he knew or had reason to know that the money in his IOLTA account were proceeds of unlawful activity, or were intended to promote unlawful activity.
For additional information about the role of lawyers in preventing money-laundering, see this ABA Task Force webpage and the guidance provided by the ABA and jointly by the IBA, CCBE, and ABA about how to identify money-laundering red flags. (I give my students a 2-page summary of the ABA’s red flags guidance.)
My other work about lawyers and money-laundering includes these slides about the potential impact on US lawyer regulation of FATF’s 4th Mutual Evaluation of the US; slides that focus on US efforts to educate lawyers about money-laundering; and slides and a 2 page handout that discuss how US lawyer regulation could be affected if US lawyers don’t recognize money laundering situations. My most recent article about this topic is available here.