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
OTHERWISE: Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law | Casetext.
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.