Editorial: Limit mandatory arbitration in retainer agreements – NJ Law Journal

The New Jersey Supreme Court recently ruled that a lawyer may provide for mandatory arbitration  even of malpractice claims – in its retainer agreement.  But it must explain to its client the advantages and disadvantages of the choice.  The court referred the issue to is Advisory Committee on Professional Ethics – on which I serve, as I do on the amicus committee of the State Bar, and the Editorial Board of the New Jersey Law Journal half of whose members recused because they are involved one way or another in the issue which is a truly hot button issue in the New Jersey Bar.

The Law Journal Editorial Board calls for independent representation of clients in such matters.  The ACPE has solicited comments from the Bar.  It may be a bumpy ride. Published Opinions of the ACPE are binding – but subject to discretionary review by the Court itself.

  • GWC

Source: Torts Today: Editorial: Limit mandatory arbitration in retainer agreements – NJ Law Journal

 

“We believe that requiring a prospective client, not independently represented, to give up the right to choose the forum of dispute resolution at the outset of a relationship is detrimental to the client’s interest and should be banned. If, and when, a dispute arises between lawyer and client, the respective parties may agree that it is in their individual interest that the dispute be arbitrated rather than fought in court. Presumably, at that time, the client will have secured new counsel who can, independently, advise the client of the wisdom of resolving the dispute in one forum or another.

We cannot conceive of a lawyer independently consulted by a client about the wisdom of signing a mandatory arbitration clause advising that client to forfeit the choice of forum for dispute resolution at the outset of a representation. Some courts require a client to get independent advice before agreeing to mandatory arbitration in a retainer agreement. Others ban it outright. The ABA allows such a provision provided “the advantages and disadvantages are discussed.”

Lawyers – en masse – call for Giuliani to be disciplined, suspended

New York Supreme Court Appellate Division First Department It began with the New York State Bar Association announcing an inquiry into wh…

Source: OTHERWISE: Lawyers – en masse – call for Giuliani to be disciplined, suspended

 

It began with the New York State Bar Association announcing an inquiry into whether it should expel the former United States Attorney, Mayor of New York, and personal counsel to a President Rudy Giuliani.  The Trump confidant had fallen into disrepute as he played a role in the sixty failed lawsuits brought by the Trump campaign to somehow undermine the results of an election which the sitting lost by over seven million votes.  The movement gained momentum and gravity after the former prosecutor at the now notorious January 6 White House rally warmed up the soon to be riotous mob by declaring ““Let’s have trial by combat.””

Donald Trump’s narrow margins in a handful of states presented a theoretical path to snatch an electoral college victory from a popular vote defeat. Giuliani was coordinator of unsuccessful electoral challenges in a dozen states, according to Democracy Docket which itself coordinated Democratic Party defenses.  Things quickly went badly for Giuliani;s efforts as even conservative judges spurned the efforts to discount votes.  In a key state – Pennsylvania District Judge Matthew Brann, a former GOP official, repudiated the action saying

…this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.

Brann was quickly affirmed by a conservative panel of the Third Circuit which wrote  Voters, not lawyers, choose the President. Ballots, not briefs, decide elections.” 

Criticism mounted but it was the January 6 rally which pushed things off a cliff.  Two carefully crafted and detailed letters to New York disciplinary authorities in the First Department of the Appellate Division of New York Supreme Court have demanded action against Giuliani.  The first was filed by former Massachusetts Attorney General and Common Cause President Scott Harshberger on behalf of Lawyers Defending American Democracy, Inc.  The LDAD complaint, co-signed by dozens of prominent lawyers, former prosecutors and judges has now garnered over 4,000 signatures.  Citing factually and legally groundless litigation to invalidate millions of votes Harshberger et al. call for Giuliani to be suspended while the “Committee… investigates”.

Another complaint, filed the next day by Ronald C. Minkoff, of New York, and co-signed by dozens of prominent lawyers and academics, is brought on behalf of Michael Miller, a past President of both the New York State Bar Association and the New York County Lawyers Association.  The carefully drafted and comprehensive complaint centers on the Pennsylvania action and the January 6 “attempted insurrection”. It calls for unspecified discipline against Giuliani, a New York attorney for KEEP READING:

OTHERWISE: Lawyers – en masse – call for Giuliani to be disciplined, suspended

 

OTHERWISE: Amicus Cases – NJ State Bar Association – 2015 – 2020

 

Source: OTHERWISE: Amicus Cases – NJ State Bar Association – 2015 – 2020

The New Jersey State Bar Association – the largest private organization of lawyers in the State – frequently appears (often by invitation) before the New Jersey Supreme Court on issues of particular concern to the Court, the Bar, and the public.  I am proud to be a member of the amicus committee and to have briefed and argued for the NJSBA in two cases (Kernahan and Chaparro Nieves) in the past couple years before the State Supreme Court.  
This body of work illustrates a bar association which takes to heart its role as both advocate for the interests of lawyers, and for defending the principle of access to justice. – GWC

California: Duty to Prospective client – Proposed Formal Opinion Interim No. 17-0003

The California State Bar has solicited comment on its proposed Formal Opinion No. 17-0003 regarding duties of confidentiality to and avoidance of conflicts of interest to prospective clients.  The deadline for comment is March 22, 2021. – gwc

Proposed Formal Opinion Interim No. 17-0003 [Duty to Prospective Client]

ISSUES: 
1. When a prospective client has provided confidential information to an interviewing lawyer, may the interviewing lawyer disclose that information or use it to the prospective client’s disadvantage? 
2. When the interviewing lawyer has received material confidential information from a prospective client, under what conditions is ethical screening available so that other lawyers in the lawyer’s law firm may represent other clients who are adverse to the prospective client in the same or substantially related matters? 
3. To what extent can a prospective client give advanced informed written consent to permit other lawyers in an interviewing lawyer’s law firm to be adverse to a former prospective client in the same or substantially related matter in circumstances where the interviewing lawyer is screened from the representation but the precondition for screening in rule 1.18(d) has not been met because the interviewing lawyer did not take the “reasonable measures” required by that rule?

Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68 – The New York Times

Any discussion of Deborah Rhode’s work and impact inevitably is a flood of superlatives. We are fortunate that Clay Risen of the New York Times took the time to tell the story of a woman who was a powerful debater, teacher, writer, and thinker.  A high school classmate of Merrick Garland, the Biden-Harris administration will unfortunately be unable to turn to her for the passion and powerful intellect and integrity she brought to her work in legal ethics.   The field was little heeded until the Watergate debacle put prominent lawyers like White House counsel John Dean in the dock, and Attorney General John Mitchell in jail.

Deborah Rhode, perhaps more than any other legal scholar changed that. – GWC

Source: OTHERWISE: Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68 – The New York Times

By Clay Risen

Deborah L. Rhode, a law professor who transformed the field of legal ethics from little more than a crib sheet for passing the bar exam into an empirically rich, morally rigorous investigation into how lawyers should serve the public, died on Jan. 8 at her home in Stanford, Calif. She was 68.
Her husband, Ralph Cavanagh, confirmed her death but said that the cause had not yet been determined.
With 30 books and some 200 law review articles to her name, Professor Rhode, who spent over four decades teaching at Stanford, was by far the most-cited scholar in legal ethics, with a work ethic that astounded even her hard-charging colleagues.
“She was done with all her chapters before I started mine,” said David J. Luban, a law professor at Georgetown and one of her co-authors on “Legal Ethics,” a casebook now in its eighth edition.

Lawyers’ response to online comments sharply limited: ABA Formal Opinion 496

Source: OTHERWISE: Lawyers’ response to online comments sharply limited: ABA Formal Opinion 496

Lawyers’ ability to respond to online criticism is sharply limited by both confidentiality and prudential concerns according to the ABA’s newly issued Formal Opinion.  The opinion largely tracks the opinions of bar associations, and official ethics committees.
One of the closer questions is what constitutes a controversy between attorney and client, relieves the lawyer of certain strictures of confidentiality under RPC 1.6.  The ABA Committee opines:
even if an online posting rose to the level of a controversy between lawyer and client, a public response is not reasonably necessary or contemplated by Rule 1.6(b) in order for the lawyer to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Comment [16] to Rule 1.6 supports this reading explaining, “Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes stated.”
It is, however, a noteworthy suggestion that

A lawyer may request that the host of the website or search engine remove the post. This may be particularly effective if the post was made by someone other than a client. If the post was made by someone pretending to be a client, but who is not, the lawyer may inform the host of the website or search engine of that fact. In making a request to remove the post, unless the client consents to disclosure, the lawyer may not disclose any information that relates to a client’s representation or that could reasonably lead to the discovery of confidential information by another, but may state that the post is not accurate or that the lawyer has not represented the poster if that is the case.

= GWC

 New York State Bar Association Launches Historic Inquiry Into Removing Trump Attorney Rudy Giuliani From Its Membership – New York State Bar Association

Source: OTHERWISE: New York State Bar Association Launches Historic Inquiry Into Removing Trump Attorney Rudy Giuliani From Its Membership – New York State Bar Association

By Susan DeSantis

24/09/2019 Rudolph Giuliani, Ex-Prefeito de Nova York

The New York State Bar Association (NYSBA) strongly condemned the violent uprising that occurred at the U.S. Capitol on Jan. 6, orchestrated by individuals bent on subverting the will of the voters by disrupting the certification of the 2020 presidential election results.

Thankfully, Congress overcame this assault and fulfilled its constitutional responsibility in certifying the Biden-Harris victory. However, we must address the root cause of this abhorrent incident, the blame for which lies first and foremost with President Donald Trump.

But the president did not act alone. Hours before the angry mob stormed the Capitol walls, Trump’s personal attorney, Rudolph Giuliani, addressed a crowd of thousands at the White House, reiterating baseless claims of widespread election fraud in the presidential election and the Georgia U.S. Senate runoffs.

“If we’re wrong, we will be made fools of, but if we’re right a lot of them will go to jail,” Mr. Giuliani said. “Let’s have trial by combat.”

 Investigate and Prosecute | New Jersey Law Journal

 The New Jersey Law Journal Editorial Board today calls for impeachment of Donald Trump and for incoming A.G. Merrick Garland to “relentlessly investigate and prosecute” those responsible for the near catastrophe at the Capitol on January 6.

Disclosure: I am a member of the Board

Source: OTHERWISE: Investigate and Prosecute | New Jersey Law Journal

Association of American Law Schools Annual Meeting Professional Responsibility Section Final Event Today

Our final PR Section event happens today, starting at 4:15 Eastern. These papers are both terrific—hope you will join us!

Section on Professional Responsibility: Works In Progress Workshop

This workshop pairs two scholars with two more senior scholars to comment on and discuss promising works in progress. The first article is entitled “Future-Proofing Against the Inevitability of Intrusive Lawyer Marketing” and is written by Seth Katsuya Endo, Assistant Professor, University of Florida Fredric G. Levin College of Law. It will be commented on by Rebecca Aviel, Professor and Associate Dean for Faculty Scholarship, University of Denver Sturm College of Law. The second article is entitled “The Color of Leadership in Public Interest Law” and is written by Atinuke (Tinu) Adediran, David and Pamela Donohue Assistant Professor, Boston College Law School. It will be commented on by Elizabeth Chambliss, Henry Harman Edens Professor of Law and Director of the NMRS Center on Professionalism, University of South Carolina School of Law. The panel will be moderated by Benjamin Edwards, Associate Professor of Law University of Nevada, Las Vegas, William S. Boyd School of Law.

Association of American Law Schools Annual Meeting Professional Responsibility Section Events Today

Attending AALS? Today is jam-packed with excellent sessions, including the PR Section’s Main Program:

2:45-4PM Eastern Section on Professional Responsibility Main Program: Legal and Judicial Ethics in the Post-#MeToo World

In 2016, the ABA amended Model Rule 8.4(g) clarifying that professional misconduct includes sexual harassment and discrimination, though few jurisdictions 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 address sexual misconduct, but some argue the reforms do not go far enough. Headlines regularly feature attorneys and judges involved in sexual misconduct, whether as bystanders, facilitators, or perpetrators. Panelists will discuss ethics as a means to address these issues. Jaime Santos, founder of Law Clerks for Workplace Accountability, will speak along with presenters selected from a competitive call for papers.

  • Moderator Renee Knake Jefferson Joanne and Larry Doherty Chair in Legal Ethics, Professor of Law University of Houston Law Center
  • Speaker Call for Papers Susan S. Fortney Professor of Law; Director, Program for the Advancement of Legal Ethics Texas A&M University School of Law
  • Speaker Call for Papers Jon J. Lee Professor of Practice University of Minnesota Law School
  • Speaker Call for Papers Samuel J. Levine Dir., Jewish Law Institute and Professor of Law Touro College, Jacob D. Fuchsberg Law Center
  • Speaker Jaime Santos, Partner Goodwin Procter

Other events of interest happening today include:

  • Thursday 1/7 11-12:15PM Eastern Section on Leadership, Co-Sponsored by Professional Responsibility and Pro Bono & Public Service Opportunities: Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement
  • Thursday 1/7 1:15-2:30PM Eastern Hot Topic Program: Breaking News in U.S. Legal Regulatory Reform Was 2020 the year that changed the practice of law forever? This panel of experts in legal regulatory reform will discuss recent and upcoming changes in legal services regulation, including: The relationship between regulatory reform and access to justice; the status of regulatory reform efforts around the country and the driving forces of these changes; what we can we learn from legal regulation in other countries; the status of evaluation efforts; an update on efforts to eliminate the bar exam as a barrier to entry for the legal profession; and what these changes mean for the future of legal education.
  • Thursday 1/7 4:15-5:30PM Eastern Author Meets Reader Shortlisted: Women in the Shadows Of the Supreme Court—A Conversation with Justice Goodwin Liu  Join California Supreme Court Justice Goodwin Liu along with the authors of the book Shortlisted: Women in the Shadows of the Supreme Court, Renee Knake Jefferson and Hannah Brenner Johnson, to hear the untold story of nine women considered for the Court before Sandra Day O’Connor became the first female Justice. The discussion will include lessons learned from this extraordinary history that can be applied today to address enduring gender disparity in positions of leadership and power, as well as observations about recent appointments to the Court. NYU Press is offering book purchasers a 30% discount + free shipping with code shortlisted30 here.

Association of American Law Schools Annual Meeting Professional Responsibility Section Events Today

Greetings on Day One of AALS!

For those attending, hope you’ll make time today for the PR Section’s pedagogy program, which is new addition this year. Here’s the full description:

4:15-5:30PM Eastern. Section on Professional Responsibility: Bright Ideas and Best Practices for Online Teaching in Professional Responsibility Courses. This program features a panel of prominent professional responsibility scholars who will share bright ideas and best practices for teaching the topic online.

  • Moderator Susan S. Fortney Professor of Law; Director, Program for the Advancement of Legal Ethics Texas A&M University School of Law
  • Speaker Alberto Bernabe Professor UIC John Marshall Law School
  • Speaker Susan D. Carle Professor of Law American University, Washington College of Law
  • Peter Joy Henry Hitchcock Prof.; Vice Dean for Academic Affairs; Director, Criminal Justice Clinic Washington University in St. Louis School of Law
  • Speaker Margaret C. Tarkington Professor of Law Indiana University Robert H. McKinney School of Law

Other events co-sponsored by our Section happening today include:

  • 2:45-5PM Eastern Section on Litigation, Co-Sponsored by Professional Responsibility: The Growth of Third-Party Litigation Finance: Opportunities and Challenges

And then please be sure to save time Thursday afternoon for other events, especially for our Section Main Program, as well as our final event of the week, Saturday’s Works-in-Progress Session.

  • Thursday 1/7 11-12:15PM Eastern Section on Leadership, Co-Sponsored by Professional Responsibility and Pro Bono & Public Service Opportunities: Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement
  • Thursday 1/7 1:15-2:30PM Eastern Hot Topic Program: Breaking News in U.S. Legal Regulatory Reform 
  • Thursday 1/7 2:45-4PM Eastern Section on Professional Responsibility Main Program: Legal and Judicial Ethics in the Post-#MeToo World
  • Thursday 1/7 4:15-5:30PM Eastern Author Meets Reader Shortlisted: Women in the Shadows Of the Supreme Court—A Conversation with Justice Goodwin Liu Special update: one of the women profiled in Shortlisted is Judge Joan Dempsey Klein, who passed away on December 24, 2020, at the age of 96. This session will now include a tribute to her in addition to the discussion planned.
  • Saturday 1/9 4:15-5:30PM Eastern Section on Professional Responsibility: Works-In-Progress Workshop

To join the conference, you need to have already registered at AALS.org, then create a profile for eventpower.com via the personalized link sent by email in order to access the main event website: https://event-app.eventpower.com/event_app/user/login/21AALS If you have problems, this contact is great for help: aals@support.eventpower.com

 Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger.

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)

Source: OTHERWISE: Donald Trump should be prosecuted for his shakedown of Georgia’s Brad Raffensperger.

Revision to ABA Model Rule 1.8(e) on Gifts

From Law360:

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.

Lawyers Working Remotely – ABA issues Formal Opinion 495

 

Source: OTHERWISE: Lawyers Working Remotely – ABA issues Formal Opinion 495

American Bar Association
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
Formal Opinion 495 December 16, 2020

 

Lawyers Working Remotely Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules

NJ Supreme Court: Attorney-Client arb agreements OK – BUT advantages and disadvantages must be explained

.

Source: OTHERWISE: NJ Supreme Court: Attorney-Client arb agreements OK – BUT advantages and disadvantages must be explained

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.

  • GWC

U.S. District Court Judge enjoins Pennsylvania from enforcing Bar rule with broad lawyer anti-discrimination prohibitions | Lawyer Ethics Alert Blogs

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).

Source: U.S. District Court Judge enjoins Pennsylvania from enforcing Bar rule with broad lawyer anti-discrimination prohibitions | Lawyer Ethics Alert Blogs

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.

“Trashed in an Online Review? Responding Is OK, But Don’t Say Too Much,” NJ Supreme Court Advisory Committee 

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

Source: ACPE – FW: “Trashed in an Online Review? Responding Is OK, But Don’t Say Too Much,” NJLJ, 12-10-20 

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.

Fred C. Zacharias Memorial Prize Announcement

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).

Reminder – Fred C. Zacharias Memorial Prize Nominations

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: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2020.

Our Co-Author Russ Pearce co-authors commentary for ACLU

Not Just a Bad President, Trump is a “Holmesian Bad Man.” Act Accordingly.

Donald Trump’s unbound corruption and authoritarianism will require more than just ordinary checks and balances.
(you can find the original here)

“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.

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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.