11th Annual Fred C. Zacharias Memorial Prize

Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020.  The prize will be awarded at the 2021 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2020.

The Challenges & Rewards of Teaching Legal Ethics by Bruce A. Green

Our co-author Bruce A. Green has a terrific piece in the current volume of The Professional Lawyer titled “The Challenges and Rewards of Teaching Legal Ethics.” As a newer member of the PR community, I can’t agree enough with Bruce’s recognition of the support of the community of PR professors. Thank you all.

Don’t miss this article!

 

Materials on Federal Judicial Ethics for Your Class

My students have been quite interested in the complaints filed against now-Justice Brett Kavanaugh, so I prepared some materials for our class today. I have a set of slides I’m happy to share – email me @ murphyme@wfu.edu.  For quick research, two pieces I can recommend, both from Russell Wheeler @ the Brookings Institute, are the recent short but concise and clear summary article “What’s happening with the ethics complaints against Brett Kavanaugh?” along with 56 Ariz. L. Rev. 479 (2014), A Primer on Regulating Federal Judicial Ethics.

ABA Formal Opinion 483: Lawyers’ Obligations After an Electronic Data Breach or Cyberattack

This week, the ABA released a formal opinion clarifying (somewhat) the obligations lawyers have when a data breach occurs involving (or having a substantial likelihood of involving) material client information.

Just in time for Cybersecurity Awareness month 2018.

You can find Formal Opinion 483 here.

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)

 

 

District Court Creates Guide for Attorney-Client Privilege in the Corporate Context

Law students and lawyers alike often go down the rabbit hole when considering what is and is not attorney-client privilege communications in the corporate context. On February 23, 2018, Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania released an order in SodexoMagic LLC v. Drexel University that sets out a set of hypotheticals for the parties to determine when privilege exists.  He comprised this set of hypotheticals after reviewing 50 documents in camera submitted by the parties as samples of disputed claims of privilege.

This court order is an extremely valuable resource for explaining privileged communications that can be withheld from production, and those that are not.  The challenged communications involved internal emails within the two corporations.  Some of the emails were between corporate counsel and employees of the corporation, and some were between others working with the corporate attorneys acting on their behalf.  When the corporate attorneys or their subordinates, such as paralegals, were providing legal advice, the privilege applied.  When the lawyers or their subordinates were “acting in a purely ‘scrivner-like’ role, their emails and documents (including draft agreements) are themselves not privileged communications.”  Judge Baylson then proceeds to analyze 13 of the emails and documents and explains which are and are not covered by attorney-client privilege.

This is a great order to review attorney-client privilege, and one that will make it into the next edition of Professional Responsibility: A Contemporary Approach!

“This sounds like my ethics class in law school…” Justice Sotomayor

The Supreme Court heard arguments today in McCoy v. Louisiana, which presents the question of whether it is unconstitutional for defense counsel to tell the jury that a client is guilty when the client insists he is innocent. It also raises interesting questions about the ethical obligations under ABA Model Rule 1.2 that “a lawyer shall abide by a client’s decisions concerning the objectives of representation” and ABA Model Rule 3.3, Candor Toward the Tribunal.

As Justice Sotomayor observed in questioning McCoy’s attorney, “this sounds like my ethics class in law school, and this very hypothetical of what do you do with a lying client?” Full oral argument transcript is here.

Adam Liptak noted in the NY Times that the justices seemed likely to side with McCoy: “Several justices said a decision as fundamental as admitting guilt in a capital case belonged to the client rather than the lawyer.” Full article here.

Cross-posted at the Legal Ethics Forum

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

Welcome!

Welcome to our community of professional responsibility teachers! This web site provides teaching resources, ranging from syllabi and powerpoints to real time updates and videos. The web site accompanies our casebook Professional Responsibility:  A Contemporary Approach (4th ed. 2020). The Casebook uses the problem method and offers learning outcomes, multiple choice assessment questions, role plays and simulations, and an interactive online version that includes short audio lectures. Please feel free to share your ideas and resources with our community of adopters.

You may review the Table of Contents here.

We look forward to getting to know you and working with you and our fellow adopters.

Renee Knake Jefferson, Russell G. Pearce, Bruce A. Green, Peter A. Joy, Sung Hui Kim, M. Ellen Murphy,  Laurel S. Terry, & Lonnie T. Brown, Jr.

Mayer Brown’s $1.6 Billion Malpractice Case is useful to teach “Who is the Client?” as well as conflicts & malpractice

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.

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.

Teaching PR Online This Summer or Fall?

Or thinking about it?
Below is a piece I originally did for the Huffington Post Tech Blog, Dispelling Myths About Online Learning.  As always, I’m happy to discuss my experiences teaching professional responsibility online at Wake Forest.  Feel free to contact me!  murphyme@wfu.edu

Despite the growing number of virtual students, many academics still believe outcomes for online education are inferior to those of face-to-face instruction, according to Babson Survey Research Group’s most recent annual report, Online Report Card – Tracking Online Education in the United States.

In my experience, the opposite is true.

Many who doubt the effectiveness of virtual classrooms have not been exposed to thoughtfully designed, rigorous courses that use technology purposefully to engage students and achieve better learning outcomes. Following are some of the most common misconceptions about online learning.

Myth 1:  Online learning denotes a single model.

There are many, often contradictory, definitions of online learning.  When you read, think or talk about online learning, it is important to be specific. While there are endless possibilities, with new ones developing each day, there are two fundamental categories of which you should be aware: asynchronous and synchronous. These terms distinguish when the interactions between and among students and teachers occur.

In a fully asynchronous classroom, students work independently, and to some extent on their own schedule, although rigorous programs have regularly scheduled due dates to allow for meaningful professor feedback on formative assessments. Fully synchronous classes are online interactions that occur simultaneously between and among students and professors.  These may include real time video, and often all students can see the teacher, and vice versa.

Online courses may have both asynchronous and synchronous components; in addition, traditional classrooms may include components of online learning. We call these blended or hybrid courses; the flipped classroom is one example.

Myth 2:  It is impossible to connect in an online classroom.

Connection is important to promote student engagement, and therefore deeper learning and outcome achievement. Many who have no experience with online learning, or who have experience with poor quality online classrooms, assume that the physical distance necessarily creates an inability to connect among professors and students. In my experience, the opposite is true. Not only are students and professors shocked at how connected they are in a virtual course, but in fully synchronous learning venues, some students say it is an even more intimate learning experience than the physical classroom.

With thoughtful implementation, technology can actually increase connection. There are more ways to connect in the virtual classroom than in many physical classrooms, which can be large, impersonal and lack adequate audio or visual technology. Some of the tools I use for connecting with students online include: class websites and blogs; pre-course surveys to get to know the class, collectively and individually; class hashtags for social media; group collaboration with professor guidance; and implementation of user-friendly communication tools, such as Remind.com’s texting service, Google Hangouts, or Skype video chats.

In addition, more frequent, personalized communication with students, either through email, text, audio or informal video, can dramatically increase the connectedness of a virtual course.

Myth 3:  Online courses are commoditized and lack rigor.

Many professors and students alike assume that online learning means students can take as little or as much time as they need to complete assignments. This is not true. Quality online programs demand a high level of engagement, interaction and participation.

For example, the fully asynchronous courses I teach combine flexibility with interactivity and collaborative learning. Courses include pre-recorded videos and podcasts that I have created and produced specifically for my class. Students progress through units each week, with regular assignment due dates, peer collaboration and a high level of professor interaction and feedback, unmatched in many traditional classrooms.

With thoughtful implementation of the proper tools to achieve the desired learning outcomes, the virtual venue not only allows, but in many ways encourages, customization and personalization, the opposite of commoditization.  Student-centered instruction that allows for active learning prevents the course from becoming a spectator sport, promoting rigor as well as relevance to the learner.

4. Online learning is all about the technology, not the learning.

The use of technology in the classroom is not a new idea; my ‘80s elementary school classes were filled with film-strips, overhead projectors, and media carts with a single television and VCR. These technologies were used to expose our classroom in rural North Carolina to a broader world and therefore, enhance our opportunities for learning. While the capabilities of today’s technologies are certainly greater, the goals of their use should be no different.

Learning, not the delivery media, venue or other tool, should always be the driver. Good instructional designers and educational technologists begin by listening to the teacher, determining what the learning outcomes are, and selecting a tool only if it helps achieve those outcomes. When done properly, a professor’s ways and means are not lost but in fact enhanced by technology.

New Study Out: The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys

As a former Lawyer Assistance Program Executive Director at Lawyers Concerned for Lawyer in Massachusetts, I was distressed by the new study that reveals: (1) young lawyers are at an increased risk of problem drinking and mental health issues; and (2) overall these issues in the legal profession may be higher than previously thought.  The study was conducted jointly by the ABA Commission on Lawyer Assistance Programs (CoLAP) and the Hazelden Betty Ford Foundation.

According to the study:
  • 21% of licensed, employed attorneys are problem drinkers;
  • 28% struggle with some level of depression; and
  • 19% demonstrate symptoms of anxiety.
Each semester, I take a few minutes in PR to address the availability of LAPs for lawyers and law students.  And, I include coverage of Rule 8.3 at the same time. If you’re interested in talking points, feel free to email me – murphyme@wfu.edu.  I also have had LAP staff and members speak with my class, with great success.  Video conferencing makes this even easier today.  In addition, CoLAP has a range of resources, including links to LAPs in each state, speaker lists, and articles.

More on the study from the ABA here; from the ABA Journal here; and from the NYTimes here.  A copy of the study from the Journal of Addition Medicine is available here.

ABA Adopts a Resolution Endorsing the Uniform Bar Exam (UBE)

On Feb. 8, 2016, the ABA House of Delegates adopted a resolution that “urges the bar admission authorities in each state and territory to adopt expeditiously the Uniform Bar Examination.”

This is relevant when teaching Chapter 2 (and also for our students’ futures.) For more information, see the NCBE’s UBE webpage.