In the field of legal ethics, Steve Krane, of Proskauer, was a colleague, leader, and superb lawyer. He will be missed.
Richard Nagareda, of Vanderbilt, didn't write about legal ethics per se, but his writings about aggregate litigation were closely related to our field.
1. Congress, the Supreme Court, the First Amendment, and Lawyering. Although state law traditionally controls the law of lawyering, especially since the McDade Amendment, but 2010 saw two cases where the Supreme Court was asked to interpret or strike down federal legislation appeared to limit the advice lawyers could give their clients. In Milavetz, Gallop & Milavetz, P.A., et al. v. United States, the Supreme Court held that the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) applied to lawyers but held off on addressing the First Amendment issue for now. Later in the year, in Holder v. Humanitarian Law Project, the court rejected a First Amendment challenge and upheld a law forbidding lawyers from engaging in normal lawyering for entities that have been designated terrorist organizations. Renee Knake and Margaret Tarkington, among others covered the topic. One can only assume that this trend will continue.
It would be an overstatement to say that whereas lawyers used to look to MR 1.2(d) and 1.16 to find the outer limits of lawyering, they now look to federal statutes and legislative histories. But for an example of that kind of analysis, read Amanda Peters, Lawyers Who Break the Law: What Congress Can Do to Prevent Mental Health Patient Advocates from Violating Federal Legislation.
2. Padilla v. Kentucky. The Supreme Court held that it was ineffective assistance of counsel for a criminal defense lawyer to fail to advise a client about the effect of a guilty plea on the client’s deportation status. Hence the proper scope of a lawyer’s representation has now been partially federalized and made a constitutional issue. Post here. The DOJ has stepped in with a white paper to help lawyers understand the immigration law issues. The ABA has created a task force to look at this issue.
3. Resolution of the Torture Memos Discpline. The Office of Professional Responsibility finally issued its report on the OLC lawyers who wrote the torture memos—but the DOJ rejected the report as flawed.
4. The Internet and Lawyering. Web 2.0 and other internet technology was exploding everywhere. Trials were infected by Facebook improprieties. Lawyers were reaching out to potential clients via Avvo, LinkedIn, Facebook, etc. The ABA’s 20/20 Commission has been looking at all of it. Lawyers started keeping their files in the cloud. Post here.
6. The Clinics Strike Back. Law school clinics were attacked by state legislatures—but the clinics seemed to hold their own. In New Jersey, the clinics unsuccessfully sought to be exempted from open record requests.
7. New Rules for the Golden State? The State Bar of California approved about seventy new rules, which now sit on some desk at the Supreme Court of California. Because the state had never based its ethics rules on the ABA approach, the adoption of the new rules will be a sea change here.
8. Funding of Public Defenders. The battles over the funding of public defender offices continued—but the economic conditions would seem to preclude any easy solutions.
9. Litigation Funding. Although litigation funding has been around in various forms for a long, long time, this year saw a flurry of developments and policy disputes. Link to article here. Post by Brad Wendel here.
10. The BP Oil Spill. The spill led to discussions about the usefulness of plaintiffs’ lawyer, whether there was anything wrong with BP getting “lawyered up,” and questions about the proper compensation of the “czar,” Kenneth Feinberg.