And what about the Foley & Lardner lawyer who was on the call with him?
Witness or defendant?
Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger. By Rick Hasen (UCLA, Election Law Blog)
And what about the Foley & Lardner lawyer who was on the call with him?
Witness or defendant?
Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger. By Rick Hasen (UCLA, Election Law Blog)
ABA Broadens What Gifts Attorneys May Give Clients
The world of legal ethics generally frowns upon attorneys providing financial assistance to their clients for nonlegal matters to avoid the possibility that the clients could become indebted to their lawyers and possibly end up pursuing lawsuits they might otherwise not file.
The ban on financial assistance by lawyers to their clients for living expenses is covered by the American Bar Association‘s Model Rule 1.8(e), which some legal advocates in recent years asserted was too narrow for real-world situations involving poor clients.
The ABA moved to amend the rule in August, allowing attorneys working for pro bono programs, law school clinics or nonprofit legal services or public interest organizations to provide “modest gifts” to their clients.
Lawyers may now provide financial assistance for living expenses such as food, medicine, rent and transportation, particularly if failing to do so might pressure the client to otherwise settle their matter or not even file it to begin with, according to the amendment.
Read more here.
The New Jersey Supreme Court in Delaney v. Sills (A30-019) has OK’d retainer agreements that provide that all disputes between attorney and client shall be subject to arbitration. But the court emphasizes that the fiduciary nature of the attorney-client tie requires candid explanation to the client of the advantages and disadvantages of the arbitral forum.
See discussion at link to my blog above.
As a member of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics I look forward to fulfilling the court’s request to us for advice on how to implement these principles.
By Joseph Corsmeier
Hello everyone and welcome to this Ethics Alert, which will discuss the recent U.S. District Judge for the District of Eastern Pennsylvania’s opinion and preliminary injunction prohibiting enforcement of a disciplinary rule broadly prohibiting discrimination by lawyers as violative of the free speech component of the First Amendment of the U.S. Constitution. The case is Greenburg v. Haggerty, U.S. District Court for the Eastern District of Pennsylvania, Case No. 20-3822. The opinion and injunction is here: https://www.courtlistener.com/recap/gov.uscourts.paed.574138/gov.uscourts.paed.574138.29.0.pdf from www.courtlistener.com).
The opinion and injunction states:
There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.
The irony cannot be missed that attorneys, those who are most educated and encouraged to engage in dialogues about our freedoms, are the very ones here who are forced to limit their words to those that do not “manifest bias or prejudice.” Pa.R.P.C. 8.4(g). This Rule represents the government restricting speech outside of the courtroom, outside of the context of a pending case, and even outside the much broader playing field of “administration of justice.” Even if Plaintiff makes a good faith attempt to restrict and self-censor, the Rule leaves Plaintiff with no guidance as to what is in bounds, and what is out, other than to advise Plaintiff to scour every nook and cranny of each ordinance, rule, and law in the Nation.
The New Jersey Supreme Court’s Advisory Committee on Professional Ethics has said – in a binding opinion – that lawyers slandered in an online review are limited to a denial. Only if a definite controversy arises – e.g. in a malpractice suit or disciplinary action. While the Committee’s opinions are subject to discretionary review by the Supreme Court itself the Committee’s published opinions bind all members of the bar. An unusual aspect of New Jersey law is that any member of the bar and any bar association has standing to petition the state’s high court for review.
Thus a lawyer who believes the First Amendment them to file a defamation action disclosing facts about the representation would have standing to petition the Supreme Court which, in its discretion, may overturn or modify the ACPE opinion. – GWC
Lawyers who receive negative online reviews from clients are free to post a response, but must avoid disclosing confidential client information, according to an opinion by New Jersey’s Advisory Committee on Professional Ethics.
Lawyers responding to online reviews posted by clients cannot reveal “information relating to representation,” except where that information is “generally known” or the client consents to the release of such information, the committee said in ACPE Opinion 738
While lawyers have some latitude in discussing clients’ cases publicly in the context of defending a malpractice suit or disciplinary complaint against the lawyer, the same freedom does not apply to an “informal controversy” over the posting of a negative online review, the committee said in its Opinion 738, made public Wednesday.
The committee offered a suggested response for such situations, which it said complies with New Jersey lawyers’ ethical obligations: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.” The statement was suggested by the Pennsylvania Bar Association.
New Jersey’s committee took up the issue of responding to negative online reviews in response to several requests to the committee and its ethics assistance hotline for guidance. Lawyers said former clients and former prospective clients have posted false, misleading and inaccurate statements about them.
The winners have been selected for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.
This year’s winners are Noah A. Rosenblum, Power-Conscious Professional Responsibility: Justice Black’s Unpublished Dissent and a Lost Alternative Approach to the Ethics of Cause Lawyering, Georgetown Journal of Legal Ethics (forthcoming), and Irene Oritseweyinmi Joe, Regulating Mass Prosecution, 53 U.C. Davis L. Rev. 1175 (2020) (Honorable Mention).
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. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: email@example.com. The deadline for submissions and nominations is September 1, 2020.
“If you want to know the law, you must look at it as a bad man does, who cares only for the material consequences,” wrote legendary Supreme Court Justice Oliver Wendell Holmes, “Not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”
Donald Trump is a Holmesian bad man, and an even worse president, pushing the bounds of corruption and authoritarianism, unbound by norms, the rule of law, a sense of shame, or even care for others. To deal with such a bad man and bad president — one who truckles to adversaries like Russian President Vladimir Putin, flouts Congress, swims in self-enrichment, and fails to take meaningful action as Americans die by the tens of thousands on his watch — will require more than the ordinary processes, checks and balances, and honor that have guided and constrained other presidents.
Fortunately, Trump’s most recent egregious trial balloons (or warning shots) about subverting the election drew pushback from even his supporters, such as the co-founder of the Federalist Society, who called Trump’s tweet “fascistic” and “itself grounds for … immediate impeachment.” But his regime’s many efforts to repress the vote and discredit and undermine the election continue unchecked, abetted by Senate Majority Leader Mitch McConnell’s refusal to take up election security and funding bills passed by the House, and his Postmaster General’s ongoing sabotage aimed at impeding the mail-in voting that will surge because of the pandemic Trump has exacerbated.
Calm may return now to Portland, Oregon, as Trump has begun to withdraw the federal paramilitary storm troopers who just recently were sowing chaos, seizing protesters off the streets, and using force, such as rubber bullets and tear gas, without probable cause or the consent of local authorities. But Trump and his confederates, including Attorney General William Barr and Acting Homeland Security Secretary Chad Wolf, continue to threaten this unconstitutional use of force in even more cities, ginning up images for Trump’s campaign ads and perhaps even road-testing tactics to remain in power in the event Trump loses the presidential election.
This is “performative authoritarianism,” according to historian Anne Applebaum. “That these tactics are not ‘totalitarian’ doesn’t make them legal, acceptable, or normal … Citizens’ rights [were] violated in Portland. People have been hauled off the streets into unmarked vehicles.”
Trump has shown again and again that, as a Holmesian bad man, he will do whatever he can get away with. It is a lesson Trump learned from his lawyer and mentor, Roy Cohn, as testified to by his lawyer and fixer Michael Cohen (now “Individual-1’s” nemesis). The tactics were honed during Trump’s career as a discriminatory and abusive developer and landlord: When dealing with tenants, contractors, and investors, do not honor your agreements and legal, let alone ethical, obligations. Don’t worry whether you have a legitimate cause of action or defense. Rather, flout norms and fairness, manipulate deadlines, drag out payments and processes, force litigation, make remedies and responses costly and cumbersome, overwhelm with falsehoods and fatigue, grind people and institutions down with the system — in short, break the law as you please, while using the law and legal procedures themselves as tools of abuse and evasion of accountability.
Civil society groups like the ACLU and Protect Democracy have been doing what they can through public denunciation and lawsuits that challenge Trump’s abuses in Portland and nationwide, exposing illegal surveillance of Americans and Trump’s use of unaccountable officials such as Wolf. But it is not enough to deplore, to protest, or to litigate. Trump’s tactics, whether in New York or in Washington, will not be defeated solely by appeals to moral or legal obligations. Nor is Trump acting alone. The attorney general, the Senate (in the grip of McConnell and a cowed and complicit Republican majority), and too many “acting” officials, conscienceless collaborators, and pliant enablers have abetted Trump in straining and eroding our democratic system.
“Democracy is not a state. It is an act,” our late hero John Lewis exhorted from his deathbed. To confront and defeat authoritarianism, performative democracy requires all patriotic defenders of the Republic to act — and that means act effectively. We should be mindful, as Holmes wrote, that “A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.” The power centers at every level in our constitutional system must show they mean business by pushing back and imposing costs using the full measure of their powers under the law.
What, then, should those with political authority and power do?
In cities like Portland, when federal paramilitaries seize people off the street or use violence against them, they commit crimes. State and local officials should charge them and arrest them, as prosecutors in Baltimore and Philadelphia have said they would do. Would Trump challenge such efforts in court? Probably. Might these efforts lead to standoffs between local police and the paramilitary? Perhaps. But criminal charges would shift the burden on to the forces of authoritarianism and send a message that those who violate the law in Trump’s name are themselves vulnerable to prosecution.
In Washington, it’s way past time to meaningfully assert congressional oversight and power. Regrettably, the Republican Senate has stood silent during, and the Democratic House of Representatives has too often allowed, Trump’s disregard of Congress’ spending enactments, the Senate’s role in confirming officials, and even the most basic requests for information necessary to congressional oversight. Even on the rare occasion when the House has defended Congress’ constitutional authority, these exertions have been ineffective and dilatory, leaving it to courts to adjudicate, let alone enforce its halting assertions.
Congress should wield its power of the purse to strip funds for illicit operations by corrupted agencies. Going further, why shouldn’t the House hold Trump’s defiant henchmen in contempt, fine them, and have the House’s Sergeant at Arms place them under arrest? Would the power of Congress be challenged in court? Probably. Might there be confrontations between the Sergeant at Arms and Trump’s minions? Perhaps. But full use of Congress’ lawful powers to stand up to a bully and his gang, to push back against a bad man, is the only way for Democratic and even Republican members of Congress to show that they give a damn about liberal democracy, and are not merely sputtering ineffectually at shameless and unconstitutional obstruction.
Nor is it only our members of Congress, governors, state attorneys general, mayors, and local prosecutors, who must act. It is we, the people who are the necessary and ultimate defenders of democracy. Like the diverse patriots protesting under the banner of Black Lives Matter, or the “Wall of Moms” in Portland, we must stand up, speak out, demonstrate, and put pressure on decision-makers. And, above all, we must vote.
Finally, there must then be a lawful reckoning — a full exposure of the corruption, complicity, and lawbreaking that have marked this regime from day one. It must be made clear to all who enable this bad man and bad president that they will be held accountable; shamed in history, in their social circles, and in the eyes of their fellow citizens; obliged to disgorge tax returns, campaign finance records, emoluments, and ill-gotten profits and prestige; prosecuted and fined or jailed where appropriate; and made to pay the price of betrayal of the American people, our values, and the rule of law that our Republic depends on.
Any hope of deterring Trump and his accomplices and enablers now — and even more importantly, building America back better when he is repudiated and gone — requires acting effectively in ways that a bad man can understand, and that the good demands.
Russell Pearce holds the Edward & Marilyn Bellet Chair in Legal Ethics, Morality & Religion at Fordham University School of Law. His college roommate, Evan Wolfson, teaches law and social change at Georgetown Law and at Yale, and serves on the advisory board of Protect Democracy.
UPDATE: The letter submitted to the State Bar by recently elected San Francisco District Attorney Chesa Boudin, a former public defender…
Source: OTHERWISE: LAW ENFORCEMENT LEADERS CALL ON STATE BAR TO CREATE NEW ETHICS RULE TO #CURETHECONFLICT OF INTEREST BETWEEN PROSECUTORS AND POLICE UNIONS – George Gascón Democrat for L.A. District Attorney
A letter submitted to the State Bar by recently elected San Francisco District Attorney Chesa Boudin, a former public defender, two other county prosecutors and his predecessor George Gascon called on the State Bar (a governmental entity) to adopt a rule or issue a formal ethics opinion to “explicitly preclude elected prosecutors-or prosecutors seeking election-from seeking or accepting political or financial support from law enforcement unions.” It was the subject of today’s Zoom public hearing before the Committee on Professional Responsibility and Conduct.
Nadine Taub was a brilliant lawyer who with Ruth Ginsburg was among the first to litigate women’s rights cases. She began that work in 1971 at Rutgers where she was recruited by Ruth Ginsburg to found the Women’s Rights Litigation Clinic. I tell the story of that era in my essay People’s Electric – Engaged legal Education at Rutgers Newark in the 1960s and 1970s.
I was privileged to co-author a brief with her in Collins v. Union County Jail (1997). A gay prisoner had been assaulted by a guard. We wrote for amicus curiae National Organization for Women and helped to overturn the New Jersey precedents that one could not recover for sexual assault unless there had been physical injury. – gwc
As Chair of the Association of American Law Schools Section on Professional Responsibility, I recently wrote this note in our PR Section Newsletter, which you can download here. The newsletter, organized by Professor Ben Edwards, is packed full of information about the Section, new scholarship in PR, and other helpful items. Enjoy!
I hope this newsletter finds you safe and well amidst a season of closings and cancellations brought on by COVID-19. As I write this note, we are on week 10 of quarantine here in our home, where my partner is trying to operate his law firm and our middle-school- and high-school-aged children have been teaching themselves cello and calculus, among other things. I imagine all of you, like me, moved your classes online in March and became a much-needed support system for our students who are facing unprecedented challenges. We count ourselves lucky because, so far, we have remained healthy but I am mindful that this may not be the case for many of you. It is strange times, indeed. Thank you for taking a moment in all of the coronavirus chaos to read this. I have to admit, I’ve been procrastinating about writing to all of you because I have struggled to know exactly what to say in my capacity as the Chair of the Section on Professional Responsibility at a time of such loss and uncertainty.Read More »
Call for Papers
AALS Section on Professional Responsibility 2021
Co-Sponsored by AALS Sections on Civil Rights,
Employment Discrimination Law, Leadership, and Minority Groups
Legal and Judicial Ethics in the Post-#MeToo World
The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g) to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond. Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.
Topics discussed at the program might include:
To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at firstname.lastname@example.org Preference will be given to completed papers, though works-in-progress are eligible for selection. The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses. Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.
Charles Toutant of the New Jersey Law Journal reports: The New Jersey Supreme Court is seeking input on a proposed rule change that would , if adopted, would change RPC 1.6 to create an exception to the duty to keep client information confidential if that information demonstrates that an innocent person was wrongly convicted of a crime with significant penal consequences. The judiciary is accepting written comments through June 26 on the proposal made public Wednesday. Click through below for a link to the report of the divided Committee.
Lawyers have long sought not only to clarify but to improve the law. So it is with the three great Abrahamic monotheistic faiths – Judaism, Christianity, and Islam They are religions of the book. Scripture is a powerful command, but like the United States Constitution adherents and aspirants find themselves impaled on the products of the founding fathers contradictions. In U.S. law it is between the Enlightenment values of the slave-holding signers of the Declaration of Independence and the protection and acquiescence in racism and chattel slavery embedded in the Constitution of 1787. Only Civil War could end it and even so the post civil war Second Founding was only a qualified success.
Similarly Christianity – a dissenters religion founded on lionization of the victim of an unjust execution has (at least since becoming the religion of empire in 314 AD.) tolerated war and capital punishment. Only in the past few years has the Catechism of the Catholic Church abjured capital punishment.
Evidenced by the practices and justifications claimed by ISIS and Boko Haram Bernard Freamon argues that although freeing slaves is lauded in the Quran the practice – particularly in war – is not definitively abjured. His objective is to spur Islamic scholars and lawyers to develop the foundation in Islamic law for complete abolition, – GWC
Toward the Abolition of Slavery under the Aegis of Islamic Law – The Comparative Jurist William & Mary Law School
by Bernard Freamon (author of Possessed by the Right Hand, The Problem of Slavery in Islamic Law and Muslim Cultures)
by Legal Ethics in Motion
by George W. Conk
When the United States Supreme Court, split along the familiar lines, reversing the courts below, ordered “Per Curiam” that Wisconsin voters who chose mail ballots must have them post-marked by midnight of election day, Tuesday, April 7, the usual alarms rang. Defenders saw a ruling to maintain regular order and ballot integrity; critics saw a partisan effort to reduce voting and aid a Republican seeking to retain a state Supreme Court seat. Of course, neither an effort to save or gain a court seat should motivate the decision on how to conduct an election.
Complaints about the erosion of rule of law are so pervasive that it becomes like the drone note in a dirge. But very so often someone usually quiet raises a voice. Unfortunately it’s usually someone retired or who served in the ancien regime before the debacle. So it was good to hear Michael Horowitz, who is both Chair of the `Council of the Inspectors General on Integrity and Efficiency’ (CIGIE) and the Inspector General at the Department of Justice speak of dismissed Inspector General Michael Atkinson. Horowitz has put his own job on the line. – gwc
DOJ Inspector General backs dismissed IG Atkinson
Michael Atkinson, the Inspector General for the Intelligence Community: “Inspector General Atkinson is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight. That includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence stated in congressional testimony was done “by the book” and consistent with the law…
In New York and New Jersey public defenders are playing an essential role: fighting to reduce the populations of people jailed in City and County jails.
Both have had significant success in recent days, as the post above shows. – gwc