Source: OTHERWISE: Required to Report a Client’s Drug Addiction? Illinois Says Not Necessarily… | Legal Ethics in Motion
This fascinating Illinois State Bar Ethics Opinion 17-01 (click through for link) presents this question under the state’s RPC 1.6(c)which mandates disclosure “to the extent the lawyer reasonably believes necessary to prevent death or substantial bodily harm”. :
The inquiring attorney has a client who is addicted to heroin and opioids, and also takes cocaine, marijuana and methadone. The client is arrested for possession of a controlled substance, and appears severely impaired during court hearings, but remains silent before the Judge, allowing the attorney to do the speaking. The client is unable to stop consuming heroin and continues to be in violation of bond conditions.
In essence the bar committee finds insufficient immediacy of harm but suggests that in appropriate circumstances RPC 1.14 Diminished Capacity may allow the lawyer the ability to take protective steps.
The AALS Section on Professional Responsibility invites papers for its program “Professional Responsibility 2018 Works in Progress Workshop” at the AALS Annual Meeting in San Diego. Two papers will be selected from those submitted.
This workshop will be an opportunity to test ideas, work out issues in drafts and interrogate a paper prior to submission. It will pair each work in progress scholar with a more senior scholar in the field who will lead a discussion of the piece and provide feedback. Successful papers should engage with scholarly literature and make a meaningful original contribution to the field or professional responsibility or legal ethics.
Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars focusing their work in the area of professional responsibility and legal ethics. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.
PAPER SUBMISSION PROCEDURE:
Two papers will be selected by the Section’s Executive Committee for presentation at the AALS annual meeting.
There is no formal requirement as to the form or length of proposals. However, the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.
The paper MUST be a work in progress and cannot be published at the time of presentation. It may, however have been accepted for publication and be forthcoming.
Please email submissions to Ben Edwards, Associate Professor, University of Nevada, Las Vegas, William S. Boyd School of Law, at firstname.lastname@example.org on or before September 30, 2017. The title of the email submission should read: “Submission – 2018 AALS Section on Professional Responsibility.”
The Second Circuit recently upheld a New York court’s dismissal of Jacoby & Meyers’ lawsuit challenging Rule 5.4’s ban on nonlawyer ownership of law firms (opinion here), and last week a Connecticut federal district court dismissed a similar challenge.
When a lawyers tries to withdraw for a client’s failure to pay, the lawyer must take care to avoid breaching the Rule 1.6 duty of confidentiality, according to the December 2016 opinion. But what does this mean, practically speaking? I see this as yet another tension between the law as a profession v. the law as a business.
“If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.”
More thoughts via the ABA Journal article Lawyers Should Tread Carefully Before Quitting a Troublesome Client.
From today’s New York Times:
The Supreme Court is taking up the case of a longtime U.S. resident who is facing deportation to South Korea after pleading guilty to a drug crime based on his lawyer’s bad advice.
The justices are hearing arguments Tuesday in an appeal by Jae Lee, who has lived in the United States for 35 years and has never been back to South Korea since coming to the United States when he was 13.
The case has taken on increased importance because President Donald Trump has promised to step up deportations, with a special focus on immigrants who have been convicted of crimes. The American Bar Association has estimated that one of every 10 criminal defendants is not an American citizen.
Lee agreed to plead guilty to possession of ecstasy with intent to distribute after his lawyer, Larry Fitzgerald, assured him that doing so would not make him subject to deportation. The lawyer was wrong.
The issue in Lee’s appeal is whether the lawyer’s recommendation to take the deal offered by prosecutors was so bad that it amounts to a violation of Lee’s constitutional right to a lawyer.
Both sides agree that Fitzgerald’s performance was deficient in representing Lee. The Supreme Court ruled in 2010 that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation.
But Lee almost must show that the bad lawyering mattered to the outcome of the criminal case.
Full article here.
Source: OTHERWISE: 2d Circuit rejects claim that lawyers have First Amendment right to non-lawyer equity partners //Alberto Bernabe //John Marshall law School
Jacoby & Myers, LLP was one of the first law firms to employ large scale consumer-oriented advertising. Their slogan “It’s about time” promised efficiencies and effectiveness. However the firm’s growth stagnated as the P.C. transformed the practice of law, making it much less labor-intensive.
In hope of raising capital the firm, according to the Second Circuit’s precis, “challenge(d) the constitutionality of a collection of New York regulations and laws that together prevent for‐profit law firms from accepting capital investment from non‐lawyers. The J&M Firms allege that, if they were allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more clients, including clients who might otherwise be unable to afford their services. By impeding them from reaching this goal, the J&M Firms contend, the state has unconstitutionally infringed their rights as lawyers to associate with clients and to access 18 the courts—rights that are grounded, they argue, in the First Amendment.
The Southern District of New York’s Judge Lewis A. Kaplan dismissed the complaint, concluding that the plaintiffs failed to state a claim for violation of any constitutional right. The Second Circuit panel agreed in Jacoby& Myers v. The Presiding Justices. It is a decision that is a major blow to those who hoped to put a chink in the wall that bars U.S. firms from – like British and Australian firms – bringing on non-lawyer equity shareholders.
The panel (Lynch, Carney and Hellerstein) declared that “even if such rights as they claim were to be recognized, the challenged regulations withstand scrutiny because they are rationally related to a legitimate state interest. We agree that under prevailing law the J&M Firms do not enjoy a First Amendment right to association or petition as representatives of their clients’ interests; and that, even if they do allege some plausible entitlement, the challenged regulations do not impermissibly infringe upon any such rights.“
The issues are thoughtfully explored by Prof. Alberto Bernabe on his Professional Responsibility Blog – below. – gwc
Professional Responsibility Blog: Court of Appeals for the Second Circuit rejects argument that rules that ban lawyers from raising capital from non lawyers are unconstitutional
Source: OTHERWISE: DC Bar: Lawyers Must Consider Ethics When Dissolving Law Firms | Legal Ethics in Motion
by VINCENT CALARCO
Closing the doors on a law firm includes much more than just locking the door behind you. “Dissolution” means the process of terminating the law firm’s existence as a legal entity. The District of Columbia Bar recently issued an opinion that discusses the multiple rules of professional conduct come into play when considering the ethics involved in dissolving a law firm.
After the members of the firm decide to dissolve the firm, the next step is to promptly notify the firm’s clients. Timing is important because, after dissolution, the law firm no longer represents its clients. Notice of the dissolution should also be sent to opposing counsel and the tribunal.
During the dissolution period, lawyers must continue to diligently represent and communicate with clients while facilitating the client’s choice of counsel going forward and where appropriate, properly disposing of client files, funds, and any property.
Under Rule 1.16(d), if a particular lawyer and his client will be terminating their relationship then the lawyer is required to “take timely steps to the extent reasonably practicable to protect the client’s interests” which include surrendering property and papers to the client, allowing time for the client to find other counsel and other considerations.
To read the full opinion, click here.