Early Career Scholarship for Dec. 2018 Melbourne Int’l Legal Ethics Conference

Thanks to the generosity of Prof. Deborah Rhode from Stanford, the International Association of Legal Ethics (IAOLE) has funds that likely will be used to fund an early career scholar’s attendance at the ILEC 2018 in Melbourne in December 2018.  For additional information about the Deborah Rhode prize for scholarship, see https://law.unimelb.edu.au/ilec2018#iaole-deborah-rhode-prize.

For information about ILEC 2018 and information about past ILEC conferences, see:

https://law.unimelb.edu.au/ilec2018 and

http://www.iaole.org/conferences/

(Hat tip: IAOLE President Prof. Alice Woolley, U. of Calgary)

 

 

Proposed Changes to DC Bar Admission Rules

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).

Powerful YouTube Video Relevant to Rule 8.4(g)

Professor Amy Salyzyn from the U. of Ottawa has circulated to the Canadian legal ethics community a link to this video entitled “But I was Wearing a Suit…” She also provided this description:

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).

But I was wearing a suit

Canadian Regulator Adopts a Cap on Referral Fees

On April 27, 2017, the Law Society of Upper Canada, which is the body that regulates lawyers in Canada’s largest province of Ontario, approved a set of recommendations that cap lawyer referral fees.   The action limits referral fees to 15% of the first $50,000 in legal fees and 5% thereafter, with an absolute cap of $25,000.  It adopted a standardized form for referral agreements that would be signed by everyone involved in a referral, including the referring lawyer, the lawyer getting the file and the client.

This action was based on a report issued by the Professional Regulation Committee’s Advertising & Referral Fee Arrangements Issues Working Group.   That Report is described in this new story and is available here (at Tab 4-2).

The U.S. counterpart to this issue is ABA Model Rule 1.5(e). Under Rule 1.5(e), a fee division among lawyers from different firms is proper if “the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing.”  That rule also requires that the feed division be in proportion to the work done or all lawyers assume “joint responsibility for the representation.”  Some states, such as Pennsylvania, have omitted the proportionality/joint responsibility clause, and other have omitted the “confirmed in a writing” requirement.

5 Year Prison Term for a Lawyer Using his IOLTA Account to Launder Money

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.

New DC Data & Recommendations About Global Practice

In May 2016, the DC Bar issued the Interim Report of its Global Legal Practice Task Force.  In June 2016, the Board of Governors of the DC Bar approved the report’s recommendations.  As the DC press release noted, “D.C. Bar members practice in 83 countries, and nearly 1,500 of the Bar’s 101,500 members live and work abroad. Fifty-four percent of the Bar’s domestic members were very or somewhat interested in expanding their international practices within the next five years …with 57 percent of that number indicating that they expect to expand their practices during that time.”

The DC Bar sent separate surveys to bar members located in the US, bar members located outside the US, and Special [Foreign] Legal Consultants.  To my knowledge, this is the first survey of its kind, in which bar members were asked demographic data about their practices and qualifications, as well as questions about the ways in which they currently interact with the DC Bar and the services they would like.   Anyone who is interested in the globalization of legal practice will find the Interim Report an interesting read.

The DC Bar press release announcing Board approval of the recommendations summarized the Task Force work as follows:

To best achieve its charge, the Task Force divided its study into three areas: examining how best to serve domestic Bar members with international practices and clients, and Bar members who live and work overseas (outbound); studying the rules by which lawyers from foreign countries can be admitted and licensed to practice in the District (inbound); and studying developments in alternative business models being employed by law firms domestically and in other countries. The interim report reflects the recommendations of the outbound subgroup and a recommendation to conduct ongoing study of alternative business structures and multi-disciplinary practice. The Task Force’s work continues on issues about the regulation, admission, and practice of foreign-educated lawyers in the District of Columbia.

 The Task Force’s proposals for outbound members fell into three broad categories: connections or networking, resources, and education and professional development.

Highlights of the proposals for short-term implementation recommend that the Bar should:

• Develop networking opportunities with substantive content for smaller groups of domestic Bar members with international legal practices.

• Improve the exchange of information about resources, education, and networking for all members engaged in the practice of cross-border and international law.

• Create varying “expertise” levels of educational programming in international law topics for all members and develop marketing for this programming.

• Develop educational programming about issues in international practice that all members often encounter: multi-country litigation; record keeping; e-discovery training and tools; conflicting legal ethics rules; attorney-client privilege abroad; and data security and privacy.

Highlights of the proposals for long-term implementation recommend that the Bar should:

• Facilitate informal gatherings of its members residing in specific regions of the world where these members commonly live and practice, such as Canada, China, France, and the United Kingdom.

• Facilitate networking between members who reside and practice outside the United States and local business groups.

• Partner with international groups and organizations based in Washington, D.C., for hosting networking events with domestic members with international practices.

• Develop and maintain a list of volunteer “resource attorneys” by international law subject matters or by conducting business in specific regions of the world.

Second Circuit Finds New York’s In-state Office Requirement Constitutional

On April 22, 2016, the Second Circuit decided SCHOENEFELD v. SCHNEIDERMAN, et. al.  In a 2-1 decision, the Second Circuit reversed the district court and remanded the case with instructions to the court to award judgment to the defendants.  The Second Circuit majority upheld the constitutionality of New York’s rule that requires an instate office.  Relying on

McBurney v. Young, 133 S. Ct. 1709 (2013), the Court held, inter alia, that “in the absence of any proof that that statute’s instate office requirement was enacted for a protectionist purpose”, plaintiff could not prevail.

The suit was filed in 2008 by Ekaterina Schoenefeld, who was a New Jersey resident. She had cited the Privileges & Immunity Clause and argued that the policy, which blocked her from practicing in New York despite passing the bar there and meeting all other requirements, served no substantial state interest.  She had noted that New York residents need not have a physical office in New  York and may practice from their homes.   This argument was not successful.  The opinions are quite lengthy – 31 pages for the majority and 25 pages for the dissent. The ABA Journal has a story about the case here about and there is Wall Street Journal article here.

Although the Court held that it was constitutional for New York to have an in-state office requirement, the decision does not require such a rule.  At some point, New York might want to revisit this issue.   In addition to its domestic implications, this ruling has the potential to reduce the number of foreign-admitted lawyers who annually sit for New York’s bar exam. See Diane Bosse, Testing Foreign-Trained Applicants in a New York State of Mind.   New York’s in-state office rule could affect the attractiveness of the New York license as a global credential.