Category: Chapter 9: Why Do Lawyers Have Special Privileges and Responsibilities

Why We Need Law Schools – Noah Feldman – Bloomberg View

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By Noah Feldman

Who needs law school? For centuries, the answer in the English-speaking world was: no one. You prepared for the bar by serving as an apprentice or an intern alongside practicing lawyers. Sure, you had to read a lot of cases. At first, they probably made no sense. But over time, you learned by watching and doing to connect the decisions in the books with real cases and real clients.

Today there’s renewed talk of returning to a world where you could join the bar after extended internships rather than formal legal study. I’m a law professor, so you’d expect me to defend the current system.

Before I do, however, let me make a big admission: Law school isn’t really necessary for lawyers or their clients. Practicing lawyers could, if they had the time and inclination, train interns to become excellent practitioners who fulfilled their obligations to their clients more than adequately. In fact, at big law firms in big cities, and smaller firms everywhere, partners and senior associates still do spend a lot of time informally training junior associates. If they didn’t, the junior lawyers wouldn’t be very good.

Graduating from law school, even having learned everything the professors have to teach, doesn’t prepare you to practice at a high level. Lawyering is an art, not a science. And the only way to learn an art well is by doing it. Yet law school is absolutely essential — not for lawyers with clients, but for our society as a whole. The reason has everything to do with what makes law distinct as a social phenomenon.”

Read More

via OTHERWISE: Why We Need Law Schools – Noah Feldman – Bloomberg View.

H&R Block’s immigrant legal services…now shut down

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From Richard Granat, H&R Block Forced to Shut Down Immigrant Document Service by the Bar | eLawyering Blog

H&R Block launched an experimental and innovative service in Texas in January to assist immigrants in completing INS forms. The forms were powered by software and H&R Block’s role was to provide a service to assist users in completing the forms within their offices– , but no legal advice was to be provided.

It didn’t take long for the organized immigration bar to shut this service down.

More details here:  http://buff.ly/1xn92pl

Lawyer Well-being and Mental Health in the News

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Several recent articles have called attention to the challenges that lawyers face in the midst of this stressful profession.

The Florida Bar News recently highlighted the problem of lawyer suicide in a provocative article by Scott Weinstein, Clinical Director for the Florida Lawyers Assistance Program.

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/5c5dc6e5081d87cf85257df5004a43cc!OpenDocument

The March 2015 ABA Journal also features an article by Stephanie Francis Ward on lawyers who self-medicate to address the stresses of the profession. This article includes an excellent directory of national referral services.

http://www.abajournal.com/magazine/article/lawyers_who_self_medicate_to_deal_with_stress_sometimes_steal_from_those

I discussed both of these articles in the context of the Chapter 6 duty to report misconduct materials, and the class quickly evolved into a lively discussion of the challenges confronting law students, and the role that drugs, alcohol and mental health play.

Please note the upcoming ABA Mental Health Day activities scheduled for March 27, 2105.

http://www.americanbar.org/groups/law_students/initiatives_awards/lshealth.html

The time is now to have your law school participate in this important national initiative. This is an opportunity to highlight professionalism and the relationship to wellness, and distribute information information including your local lawyers assistance program.

A victory for the FTC and teeth whiteners…will legal service providers be next?

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Last week the Supreme Court issued a 6-3 opinion affirming the Fourth Circuit’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission. In the decision below, the Fourth Circuit upheld the FTC’s determination that the Board of Dental Examiners violated antitrust law in issuing cease-and-desist letters to non-dentists performing teeth whitening services, finding that the Board acted as a group of private dentists rather than as a state actor. Agreeing with the Fourth Circuit, Justice Kennedy, writing for the majority, observed: “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult for even market participants to discern. Dual allegiances are not always apparent to an actor.” The decision may have implications for state bar regulators, particularly regarding unauthorized practice of law enforcement.

For more about the potential impact of the case on the legal profession, see Ken Friedman’s Forbes article (he’s the VP of Legal and Government Affiars for LegalZoom) and commentary from PrawfsBlawg. (Disclaimer, I assisted in authoring an amicus brief on behalf of LegalZoom and others. I’m also working on a paper about antitrust enforcement and the legal profession—I hope to be posting it soon…)

Did the CIA Get a Bum Rap on Torture? // David Cole – NY Times

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David Cole has read the Senate Torture Report and finds it is an unsatisfactory political compromise which focuses on effectiveness rather than the illegality of torture – thus letting the political decision makers and the designers of spurious legal defenses off the hook. – gwc

Did the Torture Report Give the CIA a Bum Rap?

by David Cole

via OTHERWISE: Did the CIA Get a Bum Rap on Torture? // David Cole – NY Times.

Members of Fordham Law Community Issue Statement Regarding Michael Brown and Eric Garner – Fordham Law

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“Statement by Members of the Fordham Law Community on Justice for Michael Brown, Eric Garner and all Americans

We are members of the Fordham Law School Community and we are deeply troubled by the evident failures of our criminal justice system in recent days. The failure to bring either police officer to a public trial after the death of Michael Brown in Ferguson, Missouri, or Eric Garner in New York City is further painful proof that our nation’s criminal justice system is deeply broken.

via Members of Fordham Law Community Issue Statement Regarding Michael Brown and Eric Garner – Fordham Law.

Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility

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By William C. Hubbard
William C. Hubbard is the President of the American Bar Association. Mr. Hubbard is a partner with Nelson Mullins Riley & Scarborough LLP in Columbia, South Carolina.

This article is adapted from remarks to staff at ABA headquarters, Chicago, at an event commemorating the 60th anniversary of Brown v. Board of Education and the 50th anniversary of the Civil Rights Act of 1964.

In December 1953, a taxi carried Thurgood Marshall from the Wardman Park Hotel to the U.S. Supreme Court to argue his biggest case, Brown vs. Board of Education. Marshall turned to his co-counsel William T. Coleman and said, “I have to be at my best today.”Marshall said he was going to have to be as good as Henry V at Agincourt, where the young king led his vastly outnumbered forces to victory over the French. The two lawyers knew what the stakes were on that exciting, memorable day. Marshall rose to the occasion, and their work changed history.But has it changed history in the way that the Supreme Court and Thurgood Marshall and William Coleman thought it would? Regrettably, unfinished business is the legacy of Brown v. Board of Education. We need to finish this unfinished business if we are to fulfill the promise of Brown.

via Unfinished Business: The Legacy of Brown v. Board of Education | The Center for Professional Responsibility.

OTHERWISE: The Dental School Model for Law Schools Future

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OTHERWISE: The Dental School Model for Law Schools Future.
In the 1970’s and 1980’s dental schools experienced a decline in applicants very similar to what law schools have been experiencing. Several universities closed their dental schools – including Georgetown, Loyola Chicago, and Fairleigh Dickinson (NJ). Absent an unanticipated surge in law school applications – which could only follow a substantial uptick in jobs – law schools are in for an era of reduced enrollment and threats to solvency. Independent schools will be hit hardest, but university-based schools will also find the limits of what their hosts are willing to pay in subsidies. – gwc

Conflicts and teeth whitening

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Yesterday the Supreme Court heard oral argument in North Carolina Board of Dental Examiners v. FTC, involving an antitrust challenge to the Board’s sending of cease and desist letters to non-dentists engaged in teeth whitening services.  You can access the filings and more detailed coverage at Scotusblog.  In my PR class today, we will discuss conflicts of interest inherent when regulators are members of the industry they regulate, and this case does a nice job of setting the issues, albeit in a somewhat different context than the way lawyers are regulated.  I’m planning to use this NPR audio clip to spark discussion. For more detail on how the Court’s decision in this case might impact the legal profession, you can read this amicus brief, which I helped put together.  And Scalia did ask a few questions about implications for the legal profession during oral argument (transcript here).

Would litigation investment by third parties prevented this debacle?

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Recently 750 personal injury and loss of consortium suits were dismissed in the famous (or infamous) Engle tobacco litigation because the the suits were brought on behalf of deceased persons or on behalf of parties claiming the loss of consortium with a deceased person. As this ABA Journal story reports, the Eleventh Circuit noted that a dead person cannot bring an personal injury claim in FL. (That’s why FL has survivorship actions.) In addition, like most states, FL merged loss of consortium into wrongful death where the primary victim is dead.

The twists and turns of the Engle litigation are truly incredible, and worth reviewing by anyone interested in tort law or aggregate litigation. But one thing is clear: the lawyers involved in these cases invested heavily in the litigation and, for the most part, are seasoned members of the plaintiffs bar.

The news that one of these law firms did not realize that hundreds of its clients were actually dead seems, therefore, incredible. Worse yet, the personal injury suits could have been saved had the proper party, a representative of the deceased, been the client. None of this is theoretically complex. But it seems that the law firm found it too expensive to individually review its 4000 client files in this litigation. One could say that this cost-cutting was penny-wise and pound foolish.

It is an interesting question whether anyone has standing to sue the firm for malpractice (in many states the answer would be no). My further question is whether this story helps us see the value of outside investment in litigation. An outside investor in the claims themselves (not the law firm) would have had an incentive to monitor the lawyers’ work and may have had the resources to help the lawyers do the investigations necessary to save the cases before the statute of limitations ran on them.

Anti-gay slurs merit suspension: New Jersey Supreme Court

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OTHERWISE: Anti-gay slurs merit suspension: New Jersey Supreme Court.
In I/M/O Jared Stolz an insurance defense lawyer , has been suspended for three months because over a period of time he insulted his adversary with anti-gay slurs. He aggravated the situation by belated apology and by denying to a court that he had received documents which he had in fact gotten. It is a case of a lawyer who, overwhelmed by his responsibilities, reacted in a deplorable way.

Work-product privilege – Lawyer must disclose documents to be used in cross exam

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New Jersey Superior Court Judge Douglas Hague required plaintiff attorneys to produce deposition transcripts for medical malpractice defendant Tamburello’s expert and precluded use at trial of any deposition document not identified beforehand. But Hague said the defense was not entitled to information about how the plaintiff would use them at trial. The Appellate Division affirmed in part in Dalton v. Crawley. Although the transcripts are discoverable (because they were not “prepared” for trial – only gathered. But in requiring plaintiff to designate those which he intended to use at trial the order intruded on a lawyer’s “mental impressions”, “trial stratagy, etc.

Read more: http://www.njlawjournal.com/id=1202650460417/Work-Product-Privilege-Covers-Using-Experts%27-Prior-Testimony-To-Impeach#ixzz2yaTUSQz1

Character & fitness: George Anastaplo – Loyola Law Prof Dies at 88

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OTHERWISE: Character & fitness: George Anastaplo – Loyola Law Prof Dies at 88.

George Anastaplo has died aged 88. The political philosopher and Loyola Chicago law professor as a young man defied the Illinois State Bar which refused to admit him because he refused to say if he was a Communist or not. He appealed – all the way to the Supreme Court which upheld the denial in a 1961 opinion by Justice John Marshal Harlan.
In dissent Associate Justice Hugo Black observed ” he had discontinued his education at the age of eighteen, and joined the Air Force during the middle of World War II — flying as a navigator in every major theater of the military operations of that war. Upon receiving an honorable discharge in 1947, he had come to Chicago and resumed his education, obtaining his undergraduate degree at the University of Chicago and entering immediately into the study of law at the University of Chicago Law School. His record throughout his life, both as a student and as a citizen, was unblemished.”

OTHERWISE: Gideon’s Trumpet Heard Faintly Now

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OTHERWISE: Gideon’s Trumpet Heard Faintly Now.

Gideon’s trumpet is heard faintly now. The prospect grows dimmer that we will realize the promise of the Model Rules of Professional Conduct. The Preamble identifies every lawyer as “a public citizen having special responsibility for the quality of justice” and to use our “influence to ensure access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal representation”. That noble sentiment runs into enormous obstacles.
When the financial crisis struck in 2008 the Federal Reserve reduced effective interest rates to near zero. Interest on lawyers trust accounts plummeted. Legal Services Corporation agencies cuts staffs by as much as half. It is not easy for courts to take firm action today to realize the laudable goals of our profession. They cannot themselves appropriate money, and elected officials faced with mandates may act against judges directly – as in New Jersey where a Governor can without stating a reason refuse to nominate for tenure any judge at the conclusion of the seven year term. In other states judges face retention elections.
In New Jersey the Editorial Board of the Law Journal – the only statewide legal newspaper – has deplored the state Supreme Court’s refusal to review D.N. v. K.M. There Justice Barry Albin – who has tenure – dissented alone from a denial of certification. The Appellate Division had refused to appoint counsel for a respondent in a “civil” Domestic Violence action. A finding of domestic violence has grave consequences. They include reputational harm, a loss of custody of children; loss of possession of the family home; financial penalties; placement on the offender registry; and loss of the right to a weapons permit – devastating for a law enforcement officer for whom that is a job requirement.

Albin argued for appointment of counsel.

ABA Task Force on the Future of Legal Education Draft Report

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The ABA Task Force on the Future of Legal Education has released a draft report with proposed reforms to law school pricing, accreditation, and licensing.  The accompanying press release is here.  For more commentary, head over to the Legal Ethics Forum.  This report addresses many of the themes in Chapter 9, and is worth assigning to students in addition to that material or using it to supplement class discussion.

Abbe Smith on Undue Process in NYT Sunday Book Review

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Abbe Smith (who has a forthcoming book of her own – How Can You Represent Those People? – with Monroe Freedman) reviews two new books that “reveal the deep gap between cherished American ideals and the harsh reality” in the Sunday NYT Book Review.  One of these books is Kids for Cash; Two Judges, Thousands of Children, and a $2.8 Million Kickback Scheme by William Ecenbarger.   The title says it all and, as Smith explains, “in a festival of injustice, prosecutors, public defenders, teachers and court employees saw it all and did nothing.”  Though the judges at the head of the scheme are now in prison, one wonders whether we will ever see meaningful reform to prevent this sort of thing or is it just another example of Amy Bach’s Ordinary Injustice.  I first learned the details of the scheme a few years ago when a student wrote a paper for my First Amendment and Lawyers’ Speech seminar, which she later turned into an article:  When Canaries Won’t Sing: The Failure of the Attorney Self-Reporting System in the ‘Cash For Kids’ Scheme, by Sarah Primrose.  Primrose argues for reform to the reporting of attorney misconduct.

(Cross posted at the Legal Ethics Forum)