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.

ABA Adopts Regulatory Objectives Resolution

On Monday, Feb. 8, 2016, the ABA House of Delegates adopted a revised and amended version of the Regulatory Objectives Resolution.  The original proposal is here.  The language that was added stated:

FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.

In my view, the resolution always was about encouraging jurisdictions to think about “why” they regulate and what they are trying to accomplish, not “what is regulated.”  The Resolution “urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess [regulatory issues].”  I hope that each U.S. jurisdiction will now decide to adopt its own regulatory objectives (and will think about whether it wants to use the ABA’s model objectives verbatim or adapt a variation such as those recommended here, those set forth in this appendix, or those adopted in 2014 in Nova Scotia.)

Reminder that Rule 1.11 Applies to Government Officials and not Only Lawyers

Judge Jesse Furman of the Southern District of New York recently refused to permit a plaintiff in a civil rights action from substituting a new lawyer on the ground that the lawyer was barred under Rule 1.11.  Furman found that lawyer “participated personally and substantially as a public officer” (Rule 1.11) in investigating plaintiff’s bias complaints when lawyer was Senior Director for Equal Employment Opportunity — not a lawyer position — at plaintiff’s employer agency.

Conflict bw state reporting statute and binding RPC creates risk for lawyers

Let’s revisit a 2015 Indiana State Bar Legal Ethics Committee Opinion (see our previous post here).  Contemporary Professional Responsibility co-author Peter Joy explains in the ABA Journal this month how a conflict between a state statute and a binding Rule of Professional Conduct may create risk for lawyers.  The Opinion covers an Indiana statute that requires immediate reporting by those “who have reason to believe” that a child is an abuse or neglect victim; lawyers are not exempt from reporting.  The ethics opinion considers how this can be squared with Rule 1.6, finding, as Professor Joy explains, “that a lawyer only has to follow the law and report child abuse or neglect necessary ‘to prevent reasonably certain death or substantial bodily harm,’ which is the standard in Indiana’s confidentiality rule for permissive reporting of a client’s confidence.

This is a great teaching example of how other rules governing lawyers – beyond the Rules of Professional Conduct – may create confusion, or even a conflict with the binding RPC. A good example for Chapters 1 or 4.


China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy

Source: China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy

The first gay marriage case has been registered by a Chinese court.  But the lawyer who filed it has been sharply criticized in an op-ed by a prominent lawyer who was once liaison of the central government to the semi-autonomous Hong Kong Government.

In the past courts rejected cases summarily or just ignored them if they were “sensitive”.  But in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.

Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).

We will soon see if China’s courts – which have no history of innovation without legislative authorization – will apply the broad principles of equal protection which its constitution declares and many laws embrace. – gwc

China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy

by Elizabeth M. Lynch

For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.

Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not….


Right to Counsel in Contested Adoption

Source: Right to Counsel in Contested Adoption

Right to Counsel in Contested Adoption

L.A., a poor woman, turned to the Children Home Society of New Jersey (CHS) for help with her young special needs daughter. CHS temporarily placed her daughter with foster parents.  Because she feared  she would not be able to financially support her daughter’s special needs, L.A. initially was inclined to put her daughter up for adoption.  She ultimately changed her mind. Nevertheless, CHS  decided that the girl would be better off with her foster parents and, therefore,  moved to terminate L.A.’s  parental rights.  After a two day trial in which she represented herself L.A.’s parental rights were terminated.  No abuse or abandonment was alleged. On appeal, L.A. challenged the trial court’s determination, arguing, among other things, that in an action to terminate parental rights an indigent respondent has a right to appointed counsel regardless of whether the action was instituted by the State or a private agency.

It is well established that if the State moves to terminate parental rights that parent has a right to appointed counsel.  Until now  if the contested adoption is moved by a private adoption agency the parent has had no right to such representation.   But in October the Appellate Division of the Superior Court declared those days at an end.  In Matter of Adoption of J.E.V. the Appellate Division concluded:

After the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights. Such termination “sever[s] the parent-child bond, … is irretrievably destructive of the most fundamental family relationship,” and “the risk of error … is considerable… “[A] natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.”

Judge Ellen Koblitz, in a passionate eloquent opinion, concluded for the panel that “L.A., when facing a consequence of such magnitude, imposed by the action of a State-licensed agency, was entitled to appointed counsel.”  That conclusion is eminently correct and past-due.  When a child is taken from a parent by state action it should make no difference whether the initiative is by a public entity or a private adoption agency like CHS.  The court’s action provides the state action warranting the protection of counsel for the natural parent.

But the remedy is problematic.  The adoptive parents’ assert that the court lacked statutory authority and that the birth mother waived her right to counsel.  L.A. adhered to the principle stand fast if you stand well and opposed the cert petition.  The state Supreme Court granted certification on December 17, 2015 framing the question as “In a private adoption matter, does an indigent parent facing termination of parental rights under New Jersey’s Adoption Act have a right to appointed counsel?”.

The Supreme Court set a peremptory briefing schedule – perhaps assign that  the right to appointed counsel will be upheld: but who should that be?  The Appellate Division panel had referred the matter to the Administrative Director of the Court, urging consultation with the Conference of Presiding Family Judges.  “The Madden [v. DelRan] list may have to be utilized to provide counsel” the opinion suggests.  That decision held that private lawyers have a duty to represent people for free where the Public Defender is not required to do so.  But the “Madden list”– an alphabetized list of attorneys prepared by Assignment Judges in each vicinage pursuant to which lawyers are assigned to represent indigent defendants on a pro bono basis —  is insufficient.    Free labor imposed by court directive – even on those with a lawyer’s professional duty – will often be no match for the experience and resources of the statewide Office of the Public Defender, which represents parents  whose children have been removed based on allegations of abuse and neglect (Office of Parental Representation), the children who have been removed (Office of Law Guardian), and individuals involuntarily committed to State psychiatric facilities (Office of Mental Health Advocacy).

The Appellate Division asked the Public Defender to represent L.A. but the PD refused, saying it lacked statutory authorization to act in private agency actions.  Private counsel was then appointed.  But as the panel observes “(o)ur Supreme Court has held that indigent parents in private adoption matters are entitled to free transcripts, provided by the plaintiffs, or if plaintiffs are financially unable to provide the transcript, then by the Office of the Public Defender (OPD).    In re Adoption of a Child by J.D.S., 176N.J. 154  (2003).”

The New Jersey State Bar Association has decided to intervene as amicus curiae.  It is to be hoped that the Association will urge  that the principle of the right to counsel should be extended by the court to authorize the Public Defender to represent the indigent parent in privately initiated contested adoption matters.  The children and the parents are owed equal and competent representation consideration.  Regardless of who initiates the proceeding it remains the State which terminates completely the rights of the parent and severs the child from mother and father.  Such a view of state action prevailed in Edmonson v. Leesville Concrete, a 1991 case in which the United States Supreme Court held that empaneling a jury was a state function which subjected a lawyer’s peremptory jury challenge to the 14th Amendment principle of equal protection of the law.

– George Conk

Florida Court of Appeal upholds lawyer’s $350,000.00 judgment against client who posted false online reviews/comments | Lawyer Ethics Alert Blogs

Source: OTHERWISE: Florida Court of Appeal upholds lawyer’s $350,000.00 judgment against client who posted false online reviews/comments | Lawyer Ethics Alert Blogs

Libel is a ancient cause of action.  The ease of communication on the internet allows a lie to spread farther and faster than ever.  But the Communications Decency Act 47 USC 230 (c) immunizes internet service providers and others who post defamatory statements.  But it has not abolished the state tort actions against the speaker or writer.

Abraham Lincoln famously said that a lawyer’s stock in trade is his time and advice.  But the most important asset may be reputation.  So the need to respond to sharp defamatory words in online reviews on websites like Yelp arises often.  But the confidentiality command of RPC 1.6 drastically limits the ability to do so.  The New York State Bar Association in Ethics Opinion 1032 (2014) opined that such an “informal” statement that a lawyer did not adequately communicate and that his services were lacking did not trigger the self defense right of  RPC 1.6 (b)(5) which permits disclosure of confidences “to establish a claim or defense”.

Similarly Pennsylvania Bar Association Formal Opinion 2014-300 opined that a lawyer may respond in only a “general” way to a negative review, being careful not to reveal any confidential information.  Similarly the  Bar Association of San Francisco in Opinion 2014-1 was of the view that

While the online review could have an impact on the attorney’s reputation,
absent a consent or waiver, disclosure of otherwise confidential information is not ethically permitted in California unless there is a formal complaint by the client, or an inquiry from a disciplinary authority based on a complaint by the client. Even in situations where disclosure is permitted, disclosure should occur only in the context of the formal proceeding or inquiry, and should be narrowly tailored to the issues raised by the former client.

In my own experience as a member of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics I was voted down decisively.  I argued that the lawyer had been defamed by the client who wrote an online assertion that she had been abandoned.  That I felt entitled the lawyer to respond publicly that  the retainer agreement limited the lawyer’s undertaking  to research and investigation.  In the view of the Committee that would be a breach of the duty of confidentiality.

But a lawyer can reveal such information if she takes the step of filing a defamation action.  Florida lawyer Anne Marie Giustibelli took that step against a client who accused her of lying about fees.  Because Giustibelli was trying to “establish a claim…in a controversy between the lawyer and the client” she was allowed to disclose confidences.  But filing defamation actions and seeking punitive damages is such a blunt instrument that it is likely to be rarely employed.  Perhaps a rule that a defamatory comment opens the door to rebuttal does have merit?  – gwc


Florida Fourth District Court of Appeal upholds lawyer’s $350,000.00 judgment against client who posted false online reviews/comments | Lawyer Ethics Alert Blogs

Hello and welcome to this Ethics Alert blog which will discuss the recent opinion of the Fourth District Court of Appeal upholding a judgment in a lawsuit filed by a lawyer alleging libel for false online comments..  The case is Ann-Marie Giustibelli, P.A. et al v. Copia Blake and Peter Birzon, Case No. 4D14-3231 (Florida 4th DCA, January 6, 2016).