The DC Court of Appeals is seeking comments on whether it should “amend D.C. App. R. 46 relating to admission of graduates of non-accredited law schools.” The proposed changes affect the rule that allows foreign LL.M. students to sit for the DC bar exam, as well as graduates of U.S. non-ABA accredited schools who have been in practice for less than 5 years. Responses should be sent to the Clerk of the DC Court of Appeals by July 31, 2018.
In February 2018, the DC Board of Governors voted in favor of the proposed amendments that would, inter alia, change the bar eligibility requirements for foreign LL.M. students. The proposed changes would reduce from 26 to 24 the number of U.S. legal education credits that provide a pathway for bar exam eligibility, change the required courses, and allow the same number of distance education courses as are permitted by ABA accreditation rules. The proposed new language, which is used in multiple locations in Rule 46, states:
Of such 24 credit hours, a total of six credit hours shalJ be earned in courses of study in the following subiects: two credit hours of instruction in professional responsibility (based on the ABA Model Rules of Professional Conduct or rules of professional conduct of a U.S. jurisdiction}; two credit hours of instruction in U.S. legal institutions (including the history, goals, structure, values, rules and responsibilities of the U.S. legal system); and two credit hours of instruction in common law legal reasoning, research, and writing. A minimum of six credit hours shall be earned in courses of study, each of which is substantially concentrated on a single subject tested on the Uniform Bar Examination. The law school issuing the credit hours shall certify in writing that its courses comply with the specific course requirements in this rule. Any amount of such 24 credit hours may be completed through distance education from the ABA-accredited law school, provided the law school issuing the credit hours certifies in writing that its distance education methods comply with ABA distance education standards;
The DC Bar’s February 2018 proposals were based on the Jan. 2018 Final Report from the DC Bar’s Global Legal Practice Task Force (“Task Force“). The DC Bar’s transmittal letter begins on p. 3 of the Court’s Notice & Comment pdf; the Jan. 2018 Final Report begins on p. 11 of the pdf, and a redline version of the proposed changes begins on p. 25 of that Final Report, which starts at p. 41 of the Court’s Notice & Comment pdf. As the DC Bar’s transmittal letter describes, the January Task Force 2018 Final Report and the February 2018 Board vote reflect comments the Task Force had received on its July 2017 consultation draft.
The topics addressed in this Notice and Comment are covered on pp. 3-4 of the Casebook (especially the “Global Perspective” box) and in Chapter 9(1). For information about why U.S.-based clients might want access to foreign-trained lawyers, see Diane F. Bosse, Testing Foreign-Trained Applicants in a New York State of Mind, 83(4) The Bar Examiner 31–37 (Dec. 2014); Laurel S. Terry, Admitting Foreign-Trained Lawyers in States Other than New York: Why it Matters, 83(4) Bar Examiner 38 (Dec. 2014).
A compelling video that listserv members may be interested in watching. For those who teach legal ethics, also content to consider adding to our syllabi. As described on YouTube:
“A grassroots project of a group of Indigenous Lawyers, with the support of CLEBC and the Law Society of BC. To encourage discussion about stereotyping and bias within the legal profession, Indigenous lawyers were asked to submit their stories about the racism and stereotyping they have faced in the practice of law”
Amy is correct that this is a compelling and powerful video. It is about 25 minutes long, but you can watch as much or as little of it as you want. It contains numerous snippets of indigenous Canadian lawyers reciting into the camera their experiences, including numerous examples of times in which they were assumed not to be lawyers or treated rudely by fellow lawyers or court personnel. This could be very useful to assign or show in class when teaching Rule 8.4(g).
The headlines and tweets in recent days about the media’s gendered coverage of female Olympians are strikingly similar to findings from a media study I conducted with Professor Hannah Brenner on the gendered coverage of female Supreme Court nominees. (Remember the headlines when Obama nominated Justices Kagan and Sotomayor? “Then Comes the Marriage Question” was one of many in this vein…)
Vox offers a critique of the Olympics coverage here: Women are crushing it at the Rio Olympics, but the media keeps focusing on their husbands. For a summary of our media study on Supreme Court nominees, click through the slides below and read our article.
|James Obergefell and Chris Geidner|
The post-Obergefell same-sex marriage Statement Calling for “Constitutional Resistance” by uber conservative Robert George has found resonance with allies like Justice Antonin Scalia. Some rallied to County Clerk Kim Davis in Kentucky – and Texas Attorney General Ken Paxton has suggested that county clerks may be entitled to exemption from following the Supreme Court’s dictates.
Former Scalia clerk and Catholic conservative Kevin Walsh at University of Richmond has acted to support his former mentor by explaining that there is no defiance of law in comparing Obergefell to Dred Scott v. Sanford, that the judiciary is supreme only in its own “department”, leaving other departments of government free to pursue their own visions of the Constitution. Judicial supremacy – the product of Marbury v. Madison as now understood – has long invited celebration and vilification, depending usually on whose oxen have been gored.
Prof. Howard Wasserman who is not in the same ideological camp has embraced the “departmentalism” notion. In my view signing on to Walsh’s label is hazardous. Of course every branch of the government participates in the development of thinking within or about the framework of the constitution. But in practice the current slogan as inspired by George – who denounces Obergefell as illegitimate as was Dred Scott – is a dangerous development.
Those like Chief Justice John Roberts who in dissent denounced Obergefell (“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision”) are playing a risky game. The majority decision giving the 2000 presidential election to George W. Bush is subject to the same attack as Roberts makes now. Judicial humility did not prevent Roberts from striking Section 5 of the Voting Rights Act; nor from striking the voluntary racial integration plans of the Seattle public schools. Such decisions cannot be resolved by neutral principles. They require prudential judgments; judiciousness rather than “constitutional resistance” is the better watchword.
by Howard Wasserman
The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.
One of the challenges to the model of departmentalism I have been advocating (what Richmond’s Kevin Walsh calls “judicial departmentalism”) is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS’s interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is “emphatically the province and duty,” etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.
On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.
The ABA Commission on the Future of Legal Services has issued its final Resolution & Report: Regulatory Objectives. This Resolution is scheduled for a vote at the February 2016 San Diego ABA Midyear Meeting. The draft objectives can provide the basis for a useful discussion in Chapters 2 and 9 regarding the purpose of regulation. (The ABA/BNA Lawyers’ Manual article about these regulatory objectives is available here.)
Full disclosure: I am on record as supporting regulatory objectives. As I explained in my Oct. 30, 2015 comment letter, I believe that regardless of what one thinks about recent market and regulatory developments, it is useful to have regulatory objectives:
My final comment is that it is important for the Commission and ABA members not to allow controversies about regulatory developments in the United States or elsewhere to derail the discussion about Model Regulatory Objectives. Many of the recent lawyer regulatory developments have been quite controversial. As I have noted in several articles, one way to think about both market and lawyer regulation developments is that they present issues regarding the “who-what-when-where-why-and-how” of lawyer regulation. For example, the North Carolina Dental Board case and the 2007 UK Legal Services Act raise issues about who it is that should regulate lawyers; LLLT, entity regulation, and ABS developments raise issues about what it is that should be regulated; the UK’s outcomes focused regulation raises questions about how regulation should occur. While these who-what-when-where-why-and-how issues have become intertwined in particular jurisdictions, it is important for U.S. jurisdictions to recognize that these issues are separable.
I believe that it is exceedingly important for a jurisdiction to ask itself the “why” question – why does the jurisdiction regulate lawyers and what it is trying to accomplish? I don’t think that asking the question of why a jurisdiction regulates presupposes a particular answer to one of the controversial “who-what-when-where-or-how” lawyer regulation issues. Moreover, failing to ask the “why do we regulate?” question doesn’t mean that the difficult issues are going to go away. Whether one likes it or not, there are market and regulatory developments in the United States and elsewhere that will be cited during regulatory debates. If a regulator can say what it is trying to achieve, its response to a particular issue – whatever that response is – should be more thoughtful and should have more credibility. It seems to me that this is in everyone’s interest.
Tom Gordon, Executive Director of Responsive Law, explains more in today’s USA Today:
Imagine that at tax time you’re required to either fill out your 1040 without help or pay a CPA hundreds of dollars to do it for you. There’s no H&R Block, and while TurboTax exists, it’s under constant siege by state regulators for being an unlicensed accountant.
That’s analogous to the situation that most Americans face whenever they have a legal issue. For even simple matters, they have to either do it themselves, hire a lawyer for over $200 an hour or use software that can do the job well but which the lawyer cartel is trying to put out of business.
Responsive Law’s Report Card on Barriers to Affordable Legal Help, which will be released Thursday, grades each state on how restrictions created by lawyers make legal help expensive and inaccessible for its residents. No state received a grade above a C. The two factors most responsible for the low grades are restrictions on who can provide legal services and restrictions on the corporate structure of law firms.
For a basic will or uncontested divorce, a consumer could be well served by a competent professional other than a lawyer. However, in most states, only lawyers are allowed to provide these services. State bars have used vaguely worded restrictions on the “unauthorized practice of law” to bring legal actions against everyone from major companies like LegalZoom to small mom-and-pop operations.
The worst offender in restricting competition is Florida, which received an F in the category of Barriers to Non-Lawyer Help. The Florida Bar has a $1.97 million annual budget dedicated to enforcement of unauthorized practice restrictions that it has used to pursue charges against people like Katie Vickers, a senior citizen who helped a fellow parishioner at her church with completing workers compensation forms.
The National Organization of Bar Counsel (NOBC) is an organization “of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada and Australia.” When she was president of the NOBC, Tracy Kepler created an International Committee, which decided to create 4 subcommittees to investigate and provide information to NOBC members about four areas of inquiry: Alternative Business Structures; Entity Regulation; Alternative Licensure ; and State and International Reciprocity
The work product from these committees has now been posted on a new NOBC “Global Resources” webpage. These new pages contain useful information. For example, the FAQ document about Entity Regulation was prepared with input from current or former US, Australian, Canadian and UK regulators, along with academics. (The Entity Regulation Committee plans to update its materials periodically.) These materials can be particularly useful when teaching Chapter 2, Chapter 3 (fee splitting) and Chapter 9.
The ABA Commission on the Future of Legal Services has circulated for discussion a draft Resolution and Report on “ABA Model Regulatory Objectives.” The draft resolution “urges each state’s highest court, and those of each territory and tribe, to be guided by the ABA Model Regulatory Objectives to help (1) assess the court’s existing regulatory framework and (2) identify and implement regulatory innovations related to legal services beyond the traditional regulation of the legal profession.” The ABA’s proposed Model Regulatory Objectives are similar, but not identical, to those included in Section 1 of the 2007 UK Legal Services Act, in Nova Scotia, and suggested by some commentators.
The ABA/BNA Lawyers’ Manual has a story about the regulatory objectives here.
The Third Circuit recently affirmed the lower court’s opinion that found Pennsylvania Rule of Admission 204 constitutional. This rule allows experienced attorneys to be admitted to the Pennsylvania bar without taking the Pennsylvania bar exam provided they are barred in a “reciprocal state,” that is, a state that similarly admits Pennsylvania attorneys by motion without requiring them to take that state’s bar exam.
Prosecutorial discretion is a principal driver of disparities in law enforcement in the U.S. But behind that is often police discretionary enforcement. The U.S. Supreme Court has virtually blocked challenges based on racial or ethnic disparate impact absent rigorous proof of discriminatory intent. Since Washington v. Davis(1976) more than “volition” or “awareness of consequences” is required to prove purposeful discrimination.
Dean Johnson therefore sees little reason to expect courts to address the racially disparate impacts of deportation enforcement which is driven for many reasons by the ordinary criminal justice process. Legislators are more likely to be responsive, he suggests. Is it unrealistic to hope that prosecutors and defenders could be drivers of a campaign to improve our record on the principle of treating like cases alike? Is RPC 8.4’s command against “conduct prejudicial to the administration of justice” a tool against discrimination? Or is it limited to purposeful “bias” in the Washington v. Davis sense? – gwc
by Kevin Johnson (Dean, UC Davis Law School)
The U.S. immigration removal system targets noncitizens who are involved in criminal activity. Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse). State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police. Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals.
The Faculty Lounge has a lengthy post discussing the recent Second Circuit decision reversing the FRCP 12(b)(6) dismissal of a potential class action lawsuit by a contract lawyer doing document review for Skadden. (The story also appeared in a recent ABA e-Journal article.) The blog post – and comments – are worth reading. (As of this morning, however, I didn’t think the 11 blog comments sufficiently addressed the relationship between UPL laws and the UPL safe harbor provision found in Rule 5.5 and which view of UPL would “trump,” given the fact that in many states, these two stem from different branches of government).
As the ABA Journal reports, the U.S. District Court for the Southern District of New York has dismissed a complaint brought by law firm Jacoby & Myers challenging Rule 5.4’s ban on nonlawyer partnership & outside investment in law firms. This follows a remand from the Second Circuit. Lawyers for the plaintiffs have said they plan to appeal the decision to the Second Circuit. The suit, which raises 1st and 14th Amendment arguments, cited ideas discussed by casebook author Renee Knake.
Outside investment in law firms, which is sometimes referred to as alternative business structures or ABS, is available in England and Wales and Australia (and is under consideration in parts of Canada) but remains controversial. For example, the ABA Commission on Ethics 20/20 circulated a discussion paper on the topic, but in the face of negative reaction announced that it would not consider the issue further. (See here for my article on the work of the Ethics 20/20 Commission).
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.
During its June 25, 2015 meeting, the governing body of The Law Society of Upper Canada, which regulates Ontario lawyers, approved the creation of a task force to study compliance-based entity regulation (and another Task Force to promote wellness and address mental health and addiction issues.) The LSUC action was based on a report found here which was prepared by the Law Society’s Policy Secretariat and contains useful background information and a proposed structure for each task force.
The information about the task force on compliance-based entity regulation starts on p. 8. The Report explains at paragraphs 30-31 that “Compliance based regulation shifts regulatory emphasis from responding to complaints and enforcement through discipline to a proactive approach in which goals, expectations and tools for licensees are established. This means that licensees can themselves ensure that they have appropriate systems and processes in place to achieve regulatory compliance. Compliance-based regulation has been generally been implemented together with entity regulation. The goal is the improvement of regulatory results through a set of defined objectives that all legal services providers seek to achieve, on the basis that practice processes and systems are most effectively addressed at the firm or entity level.” See here.
The LSUC press release about the new Task Force is found here. For information showing US interest in proactive lawyer regulation, see the Session 1 materials from the ABA CPR’s 40th National Conference on Professional Responsibility held in Long Beach and a forthcoming Entity Regulation FAQ document that will be posted on the National Organization of Bar Counsel’s NOBC webpage.
by G.J. Annas, J.D., M.P.H., and Sondra S. Crosby, M.D.Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health (G.J.A., S.S.C.), and the Department of Medicine, Boston University School of Medicine (S.S.C.
Beyond the elimination of black sites, attorneys will have to stand with physicians who want to maintain their ethics (and follow, among other legal standards, the Geneva Conventions), support health professionals in their refusals to torture, and refuse to give CIA agents and contractors prospective legal immunity for violating human rights laws. And in all contexts, physicians should act only in ways consistent with good and accepted medical practice, with the consent of their patients.
From the New York Times comes news that Cesar Vargas has been admitted to practice law in New York, despite his status as an undocumented immigrant:
His legal fight to become a lawyer lasted three years. This week, Cesar Vargas, a Mexican-born 31-year-old New Yorker, became the first immigrant in the state without legal status to be approved to work as a lawyer.
An appellate panel of the State Supreme Court approved his application to the bar on Wednesday, overturning a 2013 decision by a committee that had denied his application based on his immigration status but had asked the court to rule.
In its decision, the state judiciary did what the Legislature in Albany has not been able to do: establish at least a modicum of immigration policy change.
The decision could be a test case, not only for the city, but also for the country, affecting hundreds of would-be lawyers and empowering immigrants who arrived as children to the United States and have been granted a reprieve from deportation.
Read the full article here.
Nebraska Lawmakers Vote To Abolish Death Penalty With Veto-Proof Majority.
Seven years ago I predicted that New Jersey’s legislative repeal of capital punishment would be a herald of change. At a one day symposium I organized (proceedings here, key resources here) we heard from prosecutors, defenders, legislators, the Governor, and the citizen group which mobilized to bring about the change. It was a great example of the dynamic relationships between courts, elected officials, and citizens. “Legislation, litigation, reflection, and repeal” was the title. The theme was “justice cools the fierce glow of passion by passing it through reflection”. That is what has happened in Nebraska, which will soon merit the illumination of the colosseum in Rome, as did New Jersey in December 2007.
As is now well known we hold 25% of the world’s prisoners. That is the legacy of slavery and racism. Movements like Right on Crime reflect a national move away from mass incarceration – too little, and late – but important and necessary if we are every to overcome our history. – gwc
Posted by Karen Tani
I’ve been really looking forward to this new release, from Cambridge University Press: Women and Justice for the Poor: A History of Legal Aid, 1863–1945, by former guest blogger Felice Batlan (Illinois Institute of Technology/Chicago-Kent College of Law). Here’s the abstract:
This book re-examines fundamental assumptions about the American legal profession and the boundaries between “professional” lawyers, “lay” lawyers, and social workers. Putting legal history and women’s history in dialogue, it demonstrates that nineteenth-century women’s organizations first offered legal aid to the poor and that middle-class women functioning as lay lawyers, provided such assistance. Felice Batlan illustrates that by the early twentieth century, male lawyers founded their own legal aid societies. These new legal aid lawyers created an imagined history of legal aid and a blueprint for its future in which women played no role and their accomplishments were intentionally omitted. In response, women social workers offered harsh criticisms of legal aid leaders and developed a more robust social work model of legal aid. These different models produced conflicting understandings of expertise, professionalism, the rule of law, and ultimately, the meaning of justice for the poor.