Legal Ethics Forum

California bar considers mandatory skills training

Law.com carries the news. Not surprisingly, some law schools deans disagree. Key graf:

A state bar task force will soon begin examining whether new attorneys must attain a certain level of hands-on training before being admitted to practice in California. The discussion is still in the early stages, but ideas being kicked around include requiring an internship or mentorship program; a set number of skills-training hours; or a year-long course for 3Ls that covers real-world lawyering skills.

"Zimmerman’s Lawyer Launches New Website"

WSJ Law Blog looks at this modern way of constructing a defense in a heavily watched matter.

Will SCOTUS decide whether many legal malpractice claims against patent prosecutors fall under exclusive federal jurisdiction?

We've know for a few years that the SCOTUS eventually has to resolve this issue. Dennis Crouch, at Patently-O, has the latest news.

Circuit Splits Blog looks at split over attorney client privilege for patent agents

Circuit Splits: "Dispute over 'Snoozies!' Highlights Division over Attorney-Client Privilege"

Most semesters that I teach at Berkeley or Santa Clara, we have at least one patent agent in the class, which provides a nice way to address the topics of licensing, occupational exclusion, national practice, whether a law degree is really necessary for becoming competent for all legal matters, etc.

Lawyer settles client's case, without permission, to avoid what seemed like an imminent defense verdict -- although the jury was ready to award the client $9 million

Aberto Bernabe posts about the case, which is drawing quite a bit of attention. As most of our readers know, there's a huge body of law on when the client is or is not bound by the lawyer's conduct. I wouldn't be surprised if sometime, in some jurisdiction, there was a factually similar case (but with less money on the line and a less sympathetic fact pattern).

NLJ cites Monroe Freedman in editorial about prosecutor in George Zimmerman prosecution

George Conk, at Otherwise, alerted us to an editorial (behind a paywall) at NLJ that cites Monre Freedman's blog post.(Otherwise has the full text of the editorial.)

The first sentence of the editorial addresses the critical question of "who's the client": "The special prosecutor in the Trayvon Martin case should realize that the public and the truth, not the dead youth's family, are her clients."

The editorial also criticizes the decision to bypass a grand jury and charge murder two. And the "thinness" of the probable cause affidavit also comes under attack. Elsewhere, the indefatiguable Alan Dershowitz has been urging a possible criminal investigation of the prosecutor. Dershowitz hammers on the point I raised here (a point I'm still not sure about) about whether the prosecutor can omit facts that are inconvenient to, or even contrary to, the prosecutor's theory.

Stephen Gillers, "A Profession, If You Can Keep It: How Information Technology and Fading Borders are Reshaping the Law Marketplace and What We Should Do About It"

Article. Abstract:

Technology is changing the way we do business. It has made cross-border trade in goods and services easy. Capital is finding ways to profit from the law business. Lawyers strive to serve clients wherever they need help, including outside their jurisdiction of admission. These changes not only affect how American law firms work, they challenge our system for licensing and regulating lawyers. The traditional geocentric model for regulating the bar, based on physical place of practice, is unstable today because lawyers can practice physically in many places and (virtually) in every place, yet no place in particular.

The next twenty years are likely to see greater transformation in how the American (and world) legal professions are organized and ply their services than was true for any comparable period in history. We have two choices. We can try to impede these forces in order to preserve a familiar and comfortable world that seems to be slipping away. Or we can decide that today’s rules should adapt to accommodate and direct the forces at bay in order to preserve the values of the American bar, which include the efficient delivery of services at reasonable cost. This Article endorses the second goal and describes how we might seek to achieve it.

Legal Services Board (UK) produces interim baseline report

Robert Cross, Project Manager (Research) of the Legal Services Board, sends along this interim baseline report (at bottom of post) and asks for input and comments. Many of us here in the US are curious to see how the new regulatory framework works in the UK.

In early April 2012 we published our interim baseline report (attached) to look at the market impacts of the Legal Services Act 2007 in England & Wales. This builds on the evaluation framework <http://www.legalservicesboard.org.uk/news_publications/publications/pdf/evaluation_framework_april_2011.pdf>  we published in April 2011, and the Oxera market segmentation framework <http://www.legalservicesboard.org.uk/news_publications/latest_news/pdf/a_framework_to_monitor_the_legal_services_sector.pdf> published in September 2011. The report is available on the Legal Services Board website, in the research <http://www.legalservicesboard.org.uk/what_we_do/Research/Publications/publications.htm>  section.  
 
We think the report might be of interest to you and some of your colleagues as it brings together information from a wide range of sources and provides a narrative around what this shows. It also highlights the key gaps in published knowledge of the legal services market.  We believe this is the first time this has been done across the whole range of legal services.  
 
We see this as a work in progress so are keen to get a wide range of feedback between now and September with a view to publishing a final report in October. I’d be grateful if you could consider circulating this as wide as possible.

Download LSA Evaluation StaOutInd April 12 FINALv3[2]

California bar reports 15% rate of non-compliance with CLE requirements; 25 lawyers referred for discipline

California has been auditing the CLE compliance records of its lawyers and has found that 15% couldn't prove that they were in compliance. About two dozen lawyers have been referred for discipline. Here's the new letter from the State Bar president to the heads of the local bar associations:

_________________________________________________

 

April 13, 2012 Re:    MCLE auditing compliance

Dear Voluntary Bar Association Leaders:

I am writing to alert you that the State Bar is taking a more aggressive approach to auditing MCLE compliance than it has historically. All California lawyers need to be aware of this change in the Bar’s MCLE auditing process.

The result of the State Bar’s recent 2011 MCLE audit of one percent or 635 lawyers has confirmed the need for increased auditing. Of the 635 audited attorneys, 539 provided the necessary documentation showing full compliance. Of the remaining 96 attorneys, five have been suspended due to their inability to show any compliance. Most of the remaining 91 attorneys had minor reporting deficiencies and received a cautionary letter from our MCLE compliance group about future compliance. Approximately 25 of the 91 are being referred to the Office to Chief Trial Counsel for disciplinary action. Using simple math, we see that 15% of this reporting group were not in compliance.

This result is troubling and reaffirms the action being taken by the State Bar. In 2012, California attorneys can expect that five percent or roughly 3,000-4,000 lawyers to be audited. In 2013, the goal is to audit 10% which translates to 7,000-8,000 lawyers. Letters requesting proof of compliance for 2012 will be mailed in June.

The message is clear. California lawyers must fulfill and accurately document and report their MCLE requirements. No California attorney should be surprised if their compliance certificate is audited. For more information regarding MCLE requirements and reporting, visit the State Bar’s MCLE web page.

If you have any questions, please send an email to Carol Madeja, Managing Director of Bar Relations Outreach at [email protected].

Thank for your attention to this issue.

Sincerely yours,

Jon B. Streeter President The State Bar of California

Fulfilling an ethical duty of disclosure to the PTO = copyright violation?

Patently-O is following the copyright infringement lawsuit by publishers of scientific journals against patent prosecution law firms that copy and submit prior art to the PTO in the course of seeking patents for their clients.