Trump should keep hands off courts – Philadelphia, Pennsylvania Bar Associations

Source: OTHERWISE: Trump should keep hands off courts – Philadelphia, Pennsylvania Bar

“I just don’t know how they cannot recuse themselves for anything Trump or Trump-related” – Donald Trump speaking of Justices Sonia Sotomayor and Ruth Ginsburg

Donald J. Trump


In restrained but firm language two leading bar associations have called attention to Donald Trump’s attacks on the judicial system  The Philadelphia Bar declared in a recent statement “Recently, we have seen a course of conduct, including communications meant to exert undue influence on the judiciary, that seems intent on undermining the rule of law and disrupting the system of checks and balances. Such attacks are dangerous in the extreme. We cannot allow them to continue.
“We call for an end to these unwarranted attacks on the judiciary and for all Americans to speak up in defense of the Constitution and our democratic principles.”
In similarly constrained language the Pennsylvania Bar Association declared:
“The integrity of our system of justice requires that this equal branch of government be free from outside influence. In particular, we must assure that the independence of the judiciary is always respected and never diminished.”

What does it mean to “induce” or “encourage” unlawful presence? – SCOTUSblog

Source: OTHERWISE: What does it mean to “induce” or “encourage” unlawful presence? – SCOTUSblog

Gabriel (Jack) Chin at Scotus blog has a good discussion of U.S. v. Sineneng-Smith – a challenge to the Immigration and Nationalities Act which in Section 1324 presents a risk of criminal prosecution to lawyers, advocates, and families of people without a legal right to be in the U.S.

***Put simply, the issue is this. 8 U.S.C. § 1324(a)(1)(A)(iv) imposes criminal penalties on any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence in is or will be in violation of law.”
Is this, as the government argues with the support of a single amicus brief, a narrow provision prohibiting criminal solicitation and aiding and abetting? Or is it, as the U.S. Court of Appeals for the 9th Circuit found and a range of amici argue, a constitutionally overbroad statute criminalizing a wide range of protected expression, including political speech, attorney representation, charitable and religious counseling, support and outreach, and grandmothers urging their foreign-born grandchildren not to leave them?***

The President is an office-holder, not a sovereign – Bernadette Meyler //Harvard L Rev

The President’s oath of office is to the laws and constitution.  He/she is not the sole receptacle of the power of the executive branch of the executive branch of the United States government.  Attorney General Barr has embraced the opposite view.  But Bernadette Meyler (Stanford Law) has amplifed the argument tellingly stated by Fordham law profs Andrew Kent, Jed Shugerman, and Ethan Leib.

Source: OTHERWISE: The President is an office-holder, not a sovereign – Bernadette Meyler //Harvard L Rev

If you haven’t looked at this discussion I recommend that you take a good luck at this ongoing and very accessible discussion which began and continues in the pages of the Harvard Law Review.  As officers of the court we are acutely aware of the limits of our authority – and of our duty of independence – bred of our oath to uphold the law.  But by the fulsome embrace of the unitary executive theory which places all executive authority in a single person – not the office, but the person of the President – Attorney General Barr abdicates his duty.  In his own words, he works under “presidential supervision” rather than as a protector of the people as sovereign. – gwc


New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

Source: OTHERWISE: New York City Bar Association Urges Congress to Commence Formal Inquiries into Conduct of Attorney General William P. Barr | Media Listing | NYC Bar

The New York City Bar Association has sent a letter to Congressional leaders, urging them “to commence formal inquiries into a pattern of conduct by Attorney General William P. Barr that threatens public confidence in the fair and impartial administration of justice.”

The letter asserts that in several extended public statements during the past few months, Mr. Barr has disregarded “bedrock obligations for government lawyers,” including “to avoid even the appearance of partiality and impropriety, and to avoid manifesting bias, prejudice, or partisanship in the exercise of official responsibilities.”

These statements include an October speech at the University of Notre Dame, now posted on the Department of Justice’s website, in which Mr. Barr stated that “the Founding generation . . . believed that the Judeo-Christian moral system corresponds to the true nature of man” and that “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.” Expressing his view that “Judeo-Christian values . . . have made this country great”—while simultaneously rejecting the moral basis of secularism and, by implication, other religions (and atheism) as “an inversion of Christian morality,” Mr. Barr vowed to place the Department of Justice “at the forefront” of efforts to resist “forces of secularization.”

In a November speech at the Federalist Society’s National Lawyers Convention, Mr. Barr charged that “opponents of the Trump presidency’s policies” have been “engaged in the systematic shredding of norms and the undermining of the rule of law” and referred to what he called a “progressive holy war,” characterized by the use of “any means necessary to gain momentary advantage.” By contrast, Mr. Barr proclaimed, conservatives “tend to have more scruple over their political tactics” and are “more genuinely committed to the rule of law.”

In December – following earlier remarks at a Fraternal Order of Police gathering in which he criticized District Attorneys from “large cities” who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law,” and “an increasingly vocal minority” that “regularly attacks the police and advances a narrative that it is the police that are the bad guys”  and “automatically start[s] screaming for the officers’ scalps, regardless of the facts” following “a confrontation involving the use of force by police”– Mr. Barr warned at a DOJ awards ceremony that “the American people have to . . . start showing, more than they do, the respect and support that law enforcement deserves,” and “if communities don’t give that support and respect, they might find themselves without the police protection they need.” While Mr. Barr did not specify which “communities” were at risk of seeing decreased police protection because they lack respect for law enforcement, and notwithstanding his later denial that he had suggested that people should not criticize police officers and his assertion that he had merely been referring to the high rates of job vacancies in police agencies throughout the country, “his comment was understood by some observers, not unreasonably, as being directed toward members of communities of color protesting excessive use of force by police,” the letter states.

Standing Up for Public Defenders

Source: OTHERWISE: Standing Up for Public Defenders

On January 6 the New Jersey Supreme Court heard oral arguments in this matter, which considers whether an attorney acting on behalf of the government to represent a private client in a litigated matter, where representation is provided as a constitutional right, is entitled to protections under the Tort Claims Act (TCA) when sued for legal malpractice. George Conk, arguing on behalf of the New Jersey State Bar Association, urged the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims:

Our fundamental objectives are to serve the public by protecting the integrity, competence, and vitality of the Bar; help to assure citizens access to justice and adequate remedies, and to assist the Courts in their mission to guarantee that justice is done. This court granted certification to answer two questions:[1] Are legal malpractice claims exempt from the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and

[2] Is plaintiff’s “loss of liberty” damages claim subject to the verbal threshold of the TCA?*

The answer to the first question must be NO.  Lawyers such as full and part time Public Defenders serve the State by whom they are employed.  They help to vindicate the Constitutional obligations of due process, equal protection, and fair trials.  But such public servants – full or part time – may falter and thereby give rise to professional liability claims.
Competent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs.  Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill-served. The Tort Claims Act blocks frivolous claims via its verbal threshold (59:9-2), limits certain damages [e.g. grants credits for collateral sources, pre-judgment interest.  The Act bars civil punitive damage awards against the State and any other public entity.  But compensatory damages are not capped.  Costs of defense are beyond the capacity of staff PDs and of the typically young, free-lance pool attorneys.

Antonio Chaparro Nieves was represented by a public defender when he was convicted of several crimes for which he served 12 years and four months. He was ultimately released, the charges were dismissed on his petition for post-conviction relief, and he has recovered under the Mistaken Imprisonment Act. The trial court ruled that the procedural requirements of the Tort Claims Act do not apply to legal malpractice claims. The Appellate Division reversed, holding that the Office of the Public Defender is a public entity and that public defenders are public employees who fall within TCA’s immunities and defenses.
“[T]he qualified immunity and indemnification afforded to lawyers under the Tort Claims Act is an important guarantee of the availability and independence of counsel who provide constitutionally mandated representation to those who cannot afford counsel, whether a lawyer is acting as a direct employee of the state, as a pool attorney hired through a state agency, or on a pro bono basis assigned by the Court,” said the NJSBA in its brief. While the NJSBA encouraged the Supreme Court to expand that immunity not just to public defenders, but also to pro bono attorneys assigned from the Madden list, the Supreme Court declined to hear the NJSBA’s arguments relative to Madden list representation.
* The Bar Association did not address the second question.

 For Guidance on Judiciary Party Balance, Look to NJ | Editorial – New Jersey Law Journal

Source: OTHERWISE: For Guidance on Judiciary Party Balance, Look to NJ | Editorial – New Jersey Law Journal

by the Editorial Board

Delaware’s constitutional guarantees of a bipartisan judiciary fail the test of the First Amendment, the United States Court of Appeals for the Third Circuit held recently in ADams v. Governor of Delaware.
The state’s Constitution limits qualification of state Supreme Court to members of the two “major” political parties. No more than a bare majority of judges associated with a party may serve. A different provision provides that no more than a bare majority of Superior Court judges may be from the same party. The result is that none but Democrats and Republicans serve the Delaware courts. A sometime-Democrat, sometime-independent lawyer James Adams challenged the status quo because as an independent he was disqualified from seeking judicial office. The Third Circuit in an opinion by Julio Fuentes rejected the governor’s argument that because judges are policymakers he is free of constitutional restraints and can appoint who he chooses from among the members of the major political parties in Delaware.

Lawyers have the right to change firms: ABA Formal Opinion 489

Source: OTHERWISE: Lawyers have the right to change firms: ABA Formal Opinion 489

Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm.

News from the Florida Keys

An assistant state attorney in Monroe County (The Florida Keys) has just agreed to a plea in which she will use her law license for one year as a result of prosecutorial misconduct. According to the article in the Miami Herald (December 5, 2019), Colleen Dunne withheld evidence from defense attorneys as to three recorded phone calls between the defendant and his son.  The case will also result in her termination from her job as an assistant state attorney.  The plea and sanctions are still subject to review by the Florida Supreme Court.



10th Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility Winners

The winners have been selected for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.

This year’s co-winners are Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019), and Jessica A. Roth, The “New” District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019).

The award will be presented at the AALS Annual Meeting in Washington, D.C., in January.

OTHERWISE: I’ve not gotten over Brett Kavanaugh ~ Dahlia Lithwick ~ Slate

Don’t we all face this problem?

By Dahlia Lithwick  Slate

“It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice. Our attempts to get over CIA torture policies or the Iraq war or anything else don’t bring us closer to truth and reconciliation. They just make it feel better—until they do not. And we have all spent far too much of the past three years trying to tell ourselves that everything is OK when it most certainly is not normalnot OK, and not worth getting over.”

Source: OTHERWISE: I’ve not gotten over Brett Kavanaugh ~ Dahlia Lithwick ~Slate

OTHERWISE: Arbitration clause in legal malpractice claim barred by New Jersey appellate court

The New Jersey legal community has been roiled by an unpublished – but binding – Appellate Division decision that barred enforcement of the mandatory arbitration provision of a prominent firm’s standard retainer agreement.

In Delaney v. Dickey and Sills Cummis & Gross, P.C., 2019 WL 3982756, a legal malpractice action, plaintiff Brian Delaney claims the retainer agreement used by defendants   violated several RPCs and therefore its provision to arbitrate all disputes arising from the representation should not be enforced. The Chancery Division judge rejected the argument but a three judge panel reversed. Sills has now appealed to the state’s Supreme Court, and Delaney’s lawyer agrees the Court should grant certification….

Source: OTHERWISE: Arbitration clause in legal malpractice claim barred by New Jersey appellate court

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility – Call For Papers Reminder

Submissions and nominations of articles are being accepted for the tenth 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 2019.  The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center:  The deadline for submissions and nominations is September 1, 2019.

OTHERWISE: Lawyer’s Use of Internet Search Engine Keyword Advertising OK’d by New Jersey Supreme Court’s Advisory Committee on Professional Ethics

Source: OTHERWISE: Lawyer’s Use of Internet Search Engine Keyword Advertising OK’d by New Jersey Supreme Court’s Advisory Committee on Professional Ethics


The New Jersey Supreme Court’s Advisory Committee on Professional Ethics (ACPE) has issued a binding Opinion 735 Lawyer’s Use of Internet Search Engine Keyword Advertising

The Committee- whose published opinions bind the bar – subject to discretionary appeal –  responded to an inquiry: “asking whether a lawyer may, consistent with the rules governing attorney ethics, purchase a Google Adword℠ or keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. Internet search engine advertising programs permit businesses to purchase certain keywords or phrases; when a person searching on the internet uses those words in the search, the websites of purchasers of the keywords will appear in the search results, ordinarily presented as paid or “sponsored” ads.”  The ACPE found that acceptable but abjured any method that would surreptitiously direct an inquirer from the competitor’s website to the lawyer’s own site.

Safe and sanitary – the limits of advocacy

Knowing that this story will soon disappear from Twitter and the headlines I have gathered key documents, etc. with fall classes in mind.  My suggested question for discussion is “Would you have argued – if your DOJ boss insisted – that soap was not required under the settlement agreement calling for minor immigrants to be detained in “safe and sanitary” facilities?” Click through for the full post. -gwc

Source: OTHERWISE: Safe and sanitary – the limits of advocacy

The United States appealed the order of District Court Judge Dolly M. Geer enforcing a settlement agreement in the Florio v. Meese/[Barr] class action regarding aliens conditions of confinement in which, as the government now notoriously argued in its brief

The court also rejected Defendants’ argument that “soap, towels, showers, dry clothing, or toothbrushes” are not required under the Agreement because the Agreement makes no mention of those items.

The news has been full of debate about the unwillingness of DOJ  attorney Sharon Fabian to concede at oral argument before the Court of Appeals in San Francisco that soap, toothbrushes, and beds are necessities implied by the term “facilities that are safe and sanitary” in the 1994 settlement agreement between the U.S. and the Florio class of detained minor immigrants.

Civil Gideon: NJ Court Affords Counsel in Child Abuse and neglect Cases

Civil Gideon – Right to Counsel in Child Abuse Allegation by Division of Children and Families  Almost fifty years ago the New Jersey Su…

Source: OTHERWISE: Civil Gideon: NJ Court Affords Counsel in Child Abuse and neglect Cases

Almost fifty years ago the New Jersey Supreme Court declared in Rodriguez v. Rosenblatt that an indigent defendant facing any “consequence of magnitude” is entitled to appointed counsel.  From that petty criminal matter the right has been slowly extended in civil matters such as termination of parental rights, jailing and “automatic” suspension of driving privileges for failure to pay child support, suspension of driving privileges, and involuntary civil commitment.  In Division of Children and Families v. L.O. the Appellate Division has extended that right to State Division of Children and Families administrative and judicial actions to substantiate child abuse, and place the defendant on the Child Abuse Registry.

The court considered whether indigent parents and guardians – once notified that an investigation has substantiated them for child abuse or neglect – are entitled to the appointment of counsel when exercising their right to an administrative hearing to challenge that determination.
Because the potential consequences of such administrative proceedings – including permanent listing in the Child Abuse Registry – are of significant magnitude, counsel must be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court, just as that right exists in Title Nine actions commenced in Superior Court.

The court also determined that until such time as the Legislature addresses this constitutional right counsel may be appointed to serve – without compensation – in such matters. Six months ago a Superior Court judges ordered the state to provide counsel to delinquent child support obligors in drivers license suspension cases.  There too funding has not been appropriated.   In this era of No new taxes pledges the Legislature has failed to respond in other instances where the right to counsel has been extended.  The recently elected Democratic Governor and the Democratic majority legislature have often found themselves at odds.  The statewide Office of the Public Defender stands ready – if funded – to provide competent representation.  But I have my doubts about whether the Governor and Legislature will address this problem. – gwc

Trump to Justices: Put yourselves in my shoes!


Source: OTHERWISE: Trump to Justices: Put yourselves in my shoes!

Pursuing their monarchical presidency argument Donald Trump’s lawyers – in their D.C. Circuit brief on appeal in the Mazars accounting subpoena case – make a sort of Golden Rule argument.  Looking ahead to the United States Supreme Court which will soon be confronted with deciding whether  Trump’s accountants must heed a House Oversight Committee subpoena for his financial records.  Put yourselves in my shoes, say Trump’s lawyers to the Justices who have exempted themselves from the Code of Conduct of United States Judges:

[A]lthough “Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income” and the Justices comply with them, the Court has never decided “whether Congress may impose those requirements on the Supreme Court.” **. In short, “the limits of Congress’s power” in this area have “never been tested.” 

Yet replace “President” with “Justices” and the ruling below would, without question, authorize a congressional subpoena for the Justices’ accounting records— even for many years before they joined the Court. There would “be little doubt” that “Congress’s interest in the accuracy of the [Justices’] financial disclosures falls within the legislative sphere.” ***

Whether they are “abiding by the Foreign Emoluments Clause is likewise a subject on which legislation … could be had.” ***. “So, too, is an investigation to determine whether [the Justices have] any conflicts of interest” (even though those laws do not currently apply to them), given that “exposing conflicts” and “shed[ding] light” are “entirely consistent with potential legislation in an area where Congress already has acted.” ***

Finally, the subpoena would be “justified based on Congress’s ‘informing function’” since, according to the district court, Congress has “sweeping authority to investigate illegal conduct of a [Justice] before and after taking office.” ***