Legal Ethics Forum

Publicly correcting your former client about the matter you represented them on. (Floyd Abrams' letter to the editor in the NYT)

I agree with the letter to the editor that Floyd Abrams wrote. It disagrees with his former client's views about the matter on which he represented the client. That's ok under the ethics rules, right? (Even if some aspect of Oasis West Realty were held to apply in New York?) I suppose that the NYT decision to run the letter is acquiesence/consent, isn't it?

I Glenn Cohen, " Rationing Legal Services"

(h/t: Legal Theory Blog) Article. Abstract:

There is a deepening crisis in the funding of legal services in the United States. The House of Representatives has proposed cutting the budget of the Legal Services Corporation (LSC), one of the main funders of legal assistance to America’s poor, to an all time low in inflation-adjusted terms. Other sources of funding, such as Interest on Lawyers Trust Account (IOLTA) are also way down due to low interest rates. More than 135 state and local organizations providing LSC assistance are now in a precarious position. The community was already decimated by the last round of cuts in January 2011, that led to the laying off of 1,226 lawyers and support staff at LSC-funded organizations, and 81,000 fewer low-income Americans receiving aid. This is all occurring at a time of extremely high unemployment and state budget cuts in services supporting low-income people, meaning demand for many of these services is going up.

The deepening crisis in funding of legal services only makes more pressing and manifest a sad reality: There is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, this Article will focus on how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.

To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services, that I discuss in greater depth below. Should the Public Defender Service favor offenders under the age of 25 instead of those older than 55? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? How should Connecticut Legal Services prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?

These are but a small number of the difficult questions faced by those who have to ration legal services. Very little has been said as to what principles should govern the rationing of legal services. This is surprising given that civil and criminal LSPs are often funded through a mixture of government funding and charitable support in such a way that they should be answerable on questions of justice, and because their decisions whether or not to support a client is likely to have significant effects on that person’s life prospects. Thus, it seems as though the rationing decisions of LSPs deserve significant ethical scrutiny.

In this Article, I seek to remedy this deficit in the existing literature by engaging in a comprehensive analysis of how LSPs should allocate their resources given the reality of persistent scarcity. Luckily, this work does not have to begin at square one. There is a developed literature in bioethics on the allocation of persistently scarce medical goods (such as organs, ICU beds, and vaccine doses) that I use to illuminate the problems facing LSPs and the potential rationing principles they might adopt.

In memoriam: Gary A. Munneke

Pace is reporting the sad news that Gary Munneke has passed away. He was a pioneer and leader in the field of law practice management, among others. Here is a memorial page.

Pace also notes:

From 2006-2009, Professor Munneke served on the ABA Board of Governors, after a two year term on the ABA Nominating Committee and a six-year term in the ABA House of Delegates. He has also served as Chair of the ABA Law Practice Management Section, Chair of the Section’s Publishing Board, and as a member of the ABA Standing Committee on Publishing Oversight.  He was one of four subcommittee chairs of the New York State Bar Association Task Force on the Future of the Legal Profession. He has previously served as President of the National Association for Law Placement, as New York State Chair of the Fellows of the American Bar Foundation, as well as a number of other committees for the ABA and other professional associations.

Spielberg's Lincoln's ethics

In response to the new film, Lincoln, by Steven Spielberg, we've seen some commentary on Lincoln's ethics: David Brooks, Jonathan Wright, Rachel Boyle, and Cliff Vaughn. Much of the commentary explores whether it's possible to act ethically while engaged in the messy practice of politics -- a question that should resonate with lawyers. And, given that Lincoln spent so many years in ordinary county-based lawyering, to fully answer the question we'd have to understand his legal career. (As I've mentioned here before, Brian Dirck and Mark Steiner have written good, concise accounts of Lincoln's legal career.)

 

Interview with Conrad Black discussing US crimimal justice (slightly off topic)

In the course of this BBC interview, Conrad Black, a convicted felon, offers some scathing thoughts about the US justice system and about whether he's really a criminal.

Confidentiality in Private?

Interesting article on confidentiality, “Pillow Talk,” on pages 11-14 of this month’s Washington State Bar Association magazine. I wonder how many lawyers in real life meet the confidentiality standard illustrated in the text box on page 12? The standard certainly seems legally correct. But the article also asks whether this standard of confidentiality expects too much from lawyers. Ironically, the first paragraph in the magazine’s profile of King County Prosecutor Dan Satterberg, on page 59, seems inconsistent with  the WSBA’s own confidentiality article in this same magazine.

"Abolish Attorney's Retaining Lien: NJ Supreme Court Advisory Committee Urges "

The news is at George Conk's blog, Otherwise.

"The worst explanation ever by outside counsel for running over budget"

Posted on FB by my friend, GC of a high tech company: ""While I fully appreciate the need to work with budgets, our lack of alertness on timely budget warning may have been supported by our discussion in the forefront of our estimate where we sensed a joint understanding that the estimate would be a rough guidance due to the numerous uncertainties ahead."

Teenagers Refused Church Confirmation Because of Their Views on Minnesota Marriage Amendment

Is this a problem that lawyers can solve?  I doubt it.

http://www.dl-online.com/event/article/id/71314/

Can a church do this?   The First Amendment answers that question:  yes.

Can a church do this and not lose tax exempt status?    The Internal Revenue Code (IRC) and IRS interpretation of the IRC make it quite clear that the answer is also yes.   Tax exemption could be lost if the Church endorsed a candidate for election or insisted that parishioners support a candidate, but a tax exempt organization can take a position on a ballot initiative and insist that its members agree with that position as a condition to joining or remaining in the communion.

Some lawyers suggest changing the IRC to prohibit 501c3 organizations from endorsing a particular position on any matter submitted to voters.  This approach, however, is fraught with constitutional problems and other difficulties because ballot initiatives are about laws, not candidates, and 501c3 organizations routinely take positions on pending legislation and regulations.  It probably should not make a difference that voters rather than legislators make the decisions.

The tax law permits churches and other charitable groups to set their own standards for membership.    That may include requiring a teenage boy who is not even eligible to vote to say that he disagrees with the majority of voters – and with a supermajority of young voters – who believe discrimination by the government is wrong.   If the boy or his parents don’t like it, they can find another church.

And some people may do just that.  Polls show that many, perhaps a majority, of Catholic voters agree with the views that cost these teenagers their first communion.

A free market in ideas – including ideas about faith and fairness – is what the First Amendment is all about.   Many of us are outraged at what was done here, but we must recognize that people are free to associate for worship only with persons who agree with them or with church leaders on certain issues.   Parishioners can vote with their feet (or by withholding contributions).  This is a matter that lawyers – and the IRS -- should stay out of.

Law & Society Annual Meeting Boston 2013 Call for Papers/Panels--Nov. 26 Deadline

If you plan to present a paper at the upcoming Law & Society Annual Meeting in Boston, May 30-June 2, 2013, I encourage you to consider submitting your abstract or panel proposal to the LSA Collaborative Research Network (CRN 37 Private Practice Lawyers).  This tradition of organizing panels on the legal profession began seven years ago.  The advantage of this approach is that we can schedule several topically related panels without incurring scheduling conflicts.  More importantly, over the years, we have developed a true community of scholars.  This year Hannah Brenner (my colleague and co-director of the Kelley Institute of Ethics & the Legal Profession here at MSU Law) and I will be putting the panels together collaboratively.

If you would like your paper included, or if you have a panel that you'd like to make sure does not conflict with others on the legal profession, please submit your abstract or panel description by email to Hannah at [email protected] no later than next Monday, November 26 at noon EST.

We will organize the papers thematically (heeding your suggestions) and get your approval no later than November 29. We will submit the panels to L&S on November 30 and forward the session numbers to you so you can submit your proposed papers as “assigned papers” via the usual LSA registration by the December 4 deadline.

Please remember that the rules changed in 2012. Everyone can only present one paper at the conference. All panels must have at least 4 participants/papers and if we have less than 5 people/papers on a panel, the LSA will place others onto our panels. Panels must have one chair and may also have one discussant. For more on the LSA participation rules, see here: http://www.lawandsociety.org/boston2013/proposals.html