Legal Ethics Forum

AALS PR Section Dinner in Memphis

The AALS PR Section is organizing a dinner on Thursday night, June 2nd, at 7:30 p.m. in conection with the ABA's National Conference on Professional Responsibility in Memphis.  If you are interested in attending the dinner, contact Professor Ben Cooper (Mississippi) no later than May 30.

Who will govern the State Bar of California?

In terms of regulation of the bar, there are few stories bigger than this one -- but, maddeningly, the only good coverage so far is behind a paywall.  In a nutshell, a minority of the Board of Governors of the State Bar of California wants the state legislature to use the annual dues bill as a vehicle for changing bar governance from a mostly elected Board to an all-appointed Board.  Under that plan, the size of the board would drop from 23 to 15, the non-lawyers would account for 40% of the board, and the state Supreme Court would oversee a committe to "screen applicants and appoint the members." The motivation seems to be a belief that the current mode of self-regulation is too insular and fails to protect the public.  As you'd expect, there are quite a few elected lawyers currently on the board who vehemently oppose the proposals.  More on this as better materials become available  . . . .

Exclusionary Clubs: Shame on the 6th

One would have thought that the question "can a judge belong to a private club that has never had female or minority members -- even if not as an announced policy?" had been answered NO long ago.

But the Sixth Circuit judicial council, by a bare majority vote, thinks such (prolonged) membership is not a basis for discipline, which means judges can belong to these clubs with impunity. Imagine you are a plaintiff in a race or sex discrimination case before such a judge.

This is a sad event for equality, for the rule of law, and for the federal judiciary, at least within the Sixth Circuit 

The opinion is on the howappealing.law.com website.

[Opinon and dissents; Findings of Fact, Analysis, Recommendation; How Appealing post.  The material in these brackets added by edtior.]

 

Oasis West Realty v. Goldman: California Supreme Court rejects First Amendment defense for lawyer who publicly lobbied against real estate project he formerly helped client with

Should be a fascinating case to read, but I've only had time to skim.  I've been waiting for this opinion for some time now and have been discussing it at CLE's in the context of a continuing duty of loyalty after the attorney client relationship (ACR) ends.

A real estate lawyer helped a client with a proposed project, the ACR ended, and then the lawyer got involved in some public speech and community lobbying against the project, all without revealing client confidences.  The client sued and the lawyer successfully invoked an anti-SLAPP defense.  The California Supreme Court says the suit may proceed.

Download Oasis West Realty v. Goldman

"An Unblemished Record"

In reviewing several years worth of disciplinary opinions from courts around the nation in connection with a writing project, I was struck again by a disturbing pattern. Maybe my mistake was in reading all the opinions and absorbing all the varieties of bad conduct in just a couple of days. Here's the pattern.

The courts' opinions first tell a really awful story about professional or personal misconduct, sometimes sordid or tawdry, sometimes thieving, sometimes duplicitous. The opinions lay it all out and as readers we are led to expect a proportionate sanction.

But then comes that frequent phrase "an unblemished record," a phrase one rarely sees elsewhere in life or law, sometimes accompanied by "no prior discipline" (which more often than not may mean the lawyer has not heretofore been caught), and perhaps a citation to character testimony.

And although the reader had been led to expect disbarment or a long suspension for the bad behavior so abundantly detailed -- if not placement in the stocks on the public square (hmmm!) -- he or she finds instead the most modest of sanctions -- a public reprimand or a suspension the length of a nice vacation. 

I sometimes wonder if we should just forget the sanctions and instead require the lawyer to give the court's opinion to all present and prospective clients. It might better protect the public. 

Shredding document prior to litigation: when is litigation "reasonably foreseeable"?

Patently-O does a nice job of disucssing the recent Rambus patent cases.  It's one of the hardest issues for lawyers to advise on. But can't we agree that the term "shredding day" isn't helpful?

Forbes: "'Grazing,' Photocopying And Other Tricks Inflate Legal Bills"

Article here.  (h/t: Overlawyered)

Update on John Demjanjuk

Here's a footnote for anyone interested in the Tigar-Freedman debate.  The NYTimes reported today that a German court convicted John Demjanjuk of having participated in the killing of 28,000 people while working as a guard with the SS at Sobibor.  The court also found that when Sobibor was closed in 1943, Demjanjuk fought against the United States in World War II.

The DOJ criminally prosecuted an in-house lawyer, Lauren Stevens, for ordinary lawyering?

Main Justice carries news of the implosion of the criminal case DOJ brought against a GlaxoSmithKline in-house lawyer, Lauren Stevens, for her responses to administrative requests for information.

AALS Section on Professional Responsibility Call for Papers

The AALS Section on Professional Responsibility has issued a call for papers to be presented at the 2012 AALS Annual Meeting in Washington, D.C.  The call follows below, and more information about the submission process is available here. The deadline for submission is August 31, 2011.

The AALS Section on Professional Responsibility will hold a program during the AALS 2012 Annual Meeting in Washington, D.C., titled “Does the First Amendment Protect Attorney Advice, Assistance, and Representation?” and invites the submission of papers on this topic for presentation and/or publication consideration. Papers that address issues relevant to the topic will  be considered.  For example, papers may address issues such as:  Legal Services Corp. v. Velazquez and legal advice and advocacy as protected speech; how Citizens United intersects with NAACP v. Button; implications of Holder v. Humanitarian Law Project on limiting lawyer's advice in other areas; Milavetz v. United States and issues of forced speech and disclosure requirements in connection with the delivery of legal services; and other First Amendment implications for the practice of law including lawyers' use of social media, advertising, and criticism of the judiciary.