Legal Ethics Forum

Stephen Gillers, "How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession"

Article. Abstract:

Using diverse lawyer regulatory issues that have arisen in the ABA, courts, and other venues across the last forty years, this Article examines in detail the methodology and styles of argumentation that lawyers use to support or defeat change. Regulatory issues addressed include non-lawyer ownership of law firms, fee-sharing with non-lawyers, collaborative law, and a requirement that fee agreements with clients be in writing, Recommendations for improvement in the process of rule making are offered.

"New Scholarship: [Penny J] White on Judicial Disqualification in Perspective"

Judicial Ethics Forum.

Law bloggers, journalists, and credibility

Scott Greenfield and Kevin O'Keefe offer comments on the relative credibility of law bloggers and mainstream journalists who cover legal stories.

"9/11 Case: Defense Lawyers May Visit Detention Facility, Investigate Conditions"

Lawfare has the story.

New ABA Ethics Opinion on a Judge's Use of Social Media

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new and helpful opinion (here) on issues relating to a judge's use of social media.  Among other topics, the opinion address whether a judge should have to disclose electronic social media (ESM) connections with lawyers or parties who appear before the judge.  Here is some key language on that particular issue (with internal citations omitted):

A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.  In this regard, context is significant.  Simple designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.

Because of the open and casual nature of ESM communication a judge will seldom have an affirmative duty to disclose an ESM connection.  If that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed. When a judge knows that a party, a witness, or a lawyer appearing before the judge has an ESM connection with the judge, the judge must be mindful that such connection may give rise to the level of social relationship or the perception of a relationship that requires disclosure or recusal. The judge must remember that personal bias or prejudice concerning a party or lawyer is the sole basis for disqualification under Rule 2.11 that is not waivable by parties in a dispute being adjudicated by that judge. The judge should conduct the same analysis that must be made whenever matters before the court involve persons the judge knows or has a connection with professionally or personally.  A judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification.  For example, a judge may decide to disclose that the judge and a party, a party’s lawyer or a witness have an ESM connection, but that the judge believes the connection has not resulted in a relationship requiring disqualification. However, nothing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.

Gunn v. Minton: legal malpractice actions against patent lawyers can proceed in state court

Patently-O has the story and a link to the opinion. This is the result I thought was correct. It may not be good news for patent lawyers who are sued for malpractice. Federal courts are generally more willing to grant summary judgment motions and because they have experience with patent matters may be more aware of the fact that many/some patents are worthless.

Alleged conflict of interest raised in post-conviction proceedings after high profile Chicago trial

Chicago Tribune carries the story about one of two co-counsel in a high profile case now trying to skewer the other co-counse for alleged conflicts of interest: "Peterson's defense team has argued that Brodsky was operating under a conflict of interest when he represented Peterson, citing a contract that called for money to be split between Brodsky, Peterson and their publicity agent."

"Innocent Man Spent 37 Years In Jail Due To A Galling Technicality"

Business Insider has the story and quotes our own Andy Perlman about a case with similarities to the Alton Logan case.

Presidents Day Quiz (Lawyer-presidents version)

The quiz:

1. Name two presidents who might be judged as "failed president; accomplished lawyer."
2. Name two presidents who might be judged as "great president; not a great lawyer."
3. Which president obtained a patent and had a case load that was nearly one-half debt collection cases?
4. Most sources do not list this person as one of our lawyer-presidents; a few do.
5. Name the lawyer-president who served as the appellate lawyer in the Amistad case dealing with possession of seized slaves and the sitting president-lawyer when that controversial case was decided.
6. He had the greatest legal resume of all the lawyer-presidents.
7. This self-described “country lawyer” read for the law, rarely appeared in court, and handled matters involving real estate, mortgages, and title disputes.
8. He took law classes at Michigan, Yale, and UNC - Chapel Hill and later served as president.
9. Harvard conferred an honorary LL.D. upon a lawyer-president, although another lawyer-president complained of bestowing such honors “upon a barbarian who could not write a sentence of grammar and could hardly spell his own name.” Name the two lawyer-presidents.
10. He self-deprecatingly described his private law practice as, "Unpaid bills a specialty. Briefs on the liquor question furnished free to ladies. Small dogs chloroformed without charge."
11. Name three schools that can claim that at least two lawyer-presidents took law classes there.
12. Bonus Question: Which lawyers argued cases before the US Supreme Court and also served as president?

Answers below

Answers below

Answers:

1. Name two presidents who might be judged as "failed president; accomplished lawyer." Two that come to mind are Franklin Pierce and Richard Nixon.
2. Name two presidents who might be judged as "great president; not a great lawyer." FDR, Polk, and Wilson, for example. (One might argue about Andrew Jackson, but by conventional measures he had his successes as a lawyer. See question 9 below.)
3. Which president obtained a patent and had a case load that was nearly one-half debt collection cases? Lincoln.
4. Most sources do not list this person as one of our lawyer-presidents; a few do. Madison.
5. Name the lawyer-president who served as the appellate lawyer in the Amistad case dealing with possession of seized slaves and the sitting president-lawyer when that controversial case was decided. John Quincy Adams and Van Buren.
6. He had the greatest legal resume of all the lawyer-presidents. Taft.
7. This self-described “country lawyer” read for the law, rarely appeared in court, and handled matters involving real estate, mortgages, and title disputes. Calvin Coolidge.
8. He took law classes at Michigan, Yale, and UNC - Chapel Hill and later served as president. Gerald Ford.
9. Harvard conferred an honorary LL.D. upon a lawyer-president, although another lawyer-president complained of bestowing such honors “upon a barbarian who could not write a sentence of grammar and could hardly spell his own name.” Name the two lawyer-presidents. Andrew Jackson and John Quincy Adams.
10. He self-deprecatingly described his private law practice as, "Unpaid bills a specialty. Briefs on the liquor question furnished free to ladies. Small dogs chloroformed without charge." FDR.
11. Name three schools that can claim that at least two lawyer-presidents took law classes there. UNC, Yale, Harvard, William & Mary, Columbia.
12. Bonus Question: Which lawyers argued cases before the US Supreme Court and also served as president? John Quincy Adams, Polk, Lincoln, Garfield, Cleveland, Harrison, Taft, Nixon.

Laurel Terry's "Top Ten International Legal Profession Stories of 2012"

Please forgive me for the delay in posting Laurel Terry's terrific list of the Top Ten International Legal Profession Stories of 2012. Most of readers know that Laurel has been writing on the international aspects of our field for many years. Further information on all of these developments will appear in Laurel S. Terry, Transnational Legal Practice Developments Outside the U.S.: 2010-2012, 47 Int’l L. __ (2013)(forthcoming).

Top Ten International Legal Profession Stories of 2012

Laurel Terry (LTerry@psu.edu), Penn State Dickinson School of Law, USA 

1. 1.      ABS Goes Live in the UK

As reported in John Steele’s Top Ten Legal Ethics Stories of 2012 (Item #3), 2012 was the year that the UK Solicitors Regulation Authority issued alternative business structure licenses.  The stage had been set by the 2007 UK Legal Services Act which created a regulatory framework that allowed (and arguably encouraged) ABS.   After years of discussion in articles and at conferences, it finally happened.  I predict that ABS will dramatically reshape legal services not only in England and Wales, but elsewhere in the world.  ABS licenses have been issued to, among others, The Co-Operative, which is a mutually-held company that operates grocery, travel, financial services, and funeral service businesses and plans to add 3,000 solicitors in the next five years to challenge the traditional  “High [Main] Street” firms.  Additional ABS licenses have been issued to an arm of Australian publicly-traded law firm Slater & Gordon (Russell Jones & Walker), UK firm Irwin Mitchell,  legal expenses insurer Abbey Protection, a claims management company called Parabis that has private equity backing, and a consultancy headed by Cherie Booth QC.  Transatlantic law firm DLA Piper has an ownership interest in LawVest, which reportedly has applied for an ABS license.

1. 2.     The Influence of the Troika

The Troika refers to the International Monetary Fund, the European Central Bank, and the European Commission.  The Troika has become influential in lawyer regulation as it has put pressure on financially troubled European countries such as Ireland, Portugal, and Greece to reform their systems of lawyer regulation as a condition of the bailouts.  In December 2011, the ABA and the CCBE (the umbrella organization for EU bars and law societies) became so concerned about the Troika’s actions that they issued a joint letter to IMF Managing Director Christine Lagarde expressing concerns about the impact of its actions on the independence of the legal profession.  Although the IMF has said there is no reason to be concerned, the influence of the Troika is a development worth watching.  Professor John Flood has a number of useful blog entries here, here, and here; they include links to the underlying IMF documents.

1. 3.     Market Liberalization in Countries Such as Korea, Singapore, and Malaysia

A number of countries liberalized their legal services markets, providing greater access to foreign lawyers.  The Korea-U.S. Free Trade Agreement (KORUS) took effect in March 2012 and by summer 2012, more than a dozen U.S. law firms had opened up offices in Korea.   In 2012, Singapore announced that it would be issuing additional Qualified Foreign Law Practice license; this is part of its effort to become a global legal hub.  Other jurisdictions that liberalized include Malaysia and the Shanghai Bar Association, which invited foreign lawyers to become special members in a dramatic turn-around from its 2006 request to the Ministry of Justice to crack down on foreign firms.

1. 4.     Market Access Contraction in Brazil and Vietnam

2012 may have provided examples of market liberalization for foreign lawyers, but there were also high profile market access contractions.  Global firms and commentators expressed concerns during 2012 about the actions of Brazil’s national bar association, which voted in favor of strict regulations that forbid formal alliances between Brazilian lawyers and foreign legal consultants or their law firms.  The national bar association vote followed on the heels of several well-publicized opinions from the Sao Paulo branch of the bar association that had reached similar conclusions.  Vietnam has also called for more restrictions on foreign law firms.

1. 5.     Developments in India’s Ongoing UPL Saga

India has been a leading source of stories in the past few years as the UPL cases against US and UK law firms have worked their ways through the various Indian courts.  The latest developments include a February 2012 Madras High Court decision that dismissed a lawsuit brought by an Indian lawyer against thirty-one foreign law firms, ruling that foreign lawyers were entitled to participate in international arbitration proceedings in that country and to advise clients on foreign law on a "fly in fly out" basis.  (The Madras High Court also ruled that the legal process outsourcing defendants were not covered by the Advocates Act.)  This Madras decision stands in contrast to a 2009 Bombay High Court decision and has been appealed to the Supreme Court, which issued an interim order on July 4, 2012.  The proceedings are ongoing. 

1. 6.     FATF and Gatekeeper Developments:

In 2012, the Financial Action Task Force (FATF) adopted a revised version of its recommendations which are designed to prevent money laundering and terrorism financing, some of which the ABA considers problematic.   The FATF also decided to conduct a “typology” study to learn more about whether and how lawyers are involved in facilitating money laundering – a decision which the legal profession welcomed.  ABA representatives continue to be actively engaged with U.S. government and FATF representatives regarding “gatekeeper” issues.   The ABA has also continued its outreach efforts to publicize the ABA’s Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing including a February 2012 presentation to the National Organization of Bar Council which also included representatives from the U.S. Treasury Department, the U.S. Depart of Justice and the U.S. Attorney for the Southern District of New York.   So far, the U.S. federal government has been willing to rely on the legal profession’s efforts in implementing the FATF.

1. 7.     U.S. Action (and inaction) Regarding the Accreditation of Foreign Law Schools and Full Admission Applications from Foreign Lawyers

Although this item technically involves U.S. events, rather than international events, I have included on my Top 10 International Legal Profession Developments list various U.S. actions related to foreign lawyers.  Two of these items involve inaction – in September 2012, the Council of the ABA Section of Legal Education and Admission to the Bar decided to take no action with respect to the accreditation of foreign law schools.  (The Peking University School of Transnational Law had indicated that it would seek ABA accreditation if the accreditation rules were changed.)  The Council similarly failed to take any action with respect to its International Committee’s recommendation regarding a Model Rule on Admission of Foreign Educated Lawyers and Criteria for ABA Certification of an LLM Degree for the Practice of Law in the United States.  Both the foreign accreditation possibility and the foreign lawyer full admission model rule had been the subject of criticism when circulated for comment.  (It is also noteworthy that in August 2011, the Conference of Chief Justices rescinded its 2007 resolution in which it asked for ABA assistance). 

In contrast to the ABA Council’s failure to act, there were several noteworthy state actions including an amendment to New York Rule 520.6, which governs the ability of foreign LL.M. students to sit for the New York bar exam and which took effect in April 2012; Wisconsin’s 2012 rule change that allowed foreign-educated applicants who had obtained an LL.M. to sit for its bar exam; Minnesota’s 2012 admission of a foreign-educated New York lawyer (pursuant to its 2011 rule change); and Georgia’s December 2012 adoption of a rule permitting foreign in-house counsel.  Another noteworthy event was the ABA 20/20 Commission’s submission of the inbound foreign lawyer proposals for consideration by the ABA House of Delegates in February 2013.

1. 8.     New Resources Available Regarding Legal Practice and Admission Outside the U.S.

I find it surprising that as of 2012, it is still difficult to find out information about lawyer regulation elsewhere in the world.  EU Directives, such as 98/5 and the CCBE’s webpages make it easy to find out the titles and rules that apply to EU regulated lawyers, but beyond that it can be difficult to find this information.  Luckily, several new resources appeared in 2012 that should help.  They are the publication of the APEC Legal Services Inventory, the publication of the ABA Guide to International Bar Admissions, the Canadian FLSC’s ongoing consolidation of admissions, discipline, and ethics (here and here) information, and the IBA’s effort to consolidate lawyer regulatory information (click on “Countries” for links to ethics codes).  If the new international network of lawyer regulators (described below in item #9) takes off, it can provide an additional source of information.  (U.S. information is aggregated in several spots, including websites of the ABA, NCBE, and NOBC.)

1. 9.     Formation of an International Network of Legal Regulators

In September 2012, the U.K. Solicitors Regulation Authority (SRA) hosted the first ever International Conference of Legal Regulators.    This two-day conference, which had more than 100 attendees from Australia, Africa, Asia, Canada, the U.S., and the U.K., seemed to demonstrate a pent-up demand among “day job” lawyer regulators to discuss the challenges they faced and regulatory approaches.  During the final session, attendees indicated by a show of hands their interest in continuing their communication and collaboration.  They also agreed to meet in San Francisco in August 2013, as an adjunct to the National Organization of Bar Counsel meeting.  U.S. attendees included representatives from the National Conference of Bar Examiners, the Conference of Chief Justices, and the National Organization of Bar Counsel.  Although attendees were positive, at least one commentator has suggested that it would be better to have the International Bar Association or another existing entity serve this “network” function.  Further information about this conference is available here (Legal Futures blog), here (Law Gazette), here (SRA press release), here (Solicitors’ Journal) and here (PSU news item).

10.  National Developments

During the past year, there have been a number of significant legal profession developments in Australia, Canada, the EU, and the U.K, among other places.  The Canadian developments are set forth in Alice Woolley’s blog entry entitled The Top Ten Canadian Legal Ethics Stories – 2012.  I hope that John Steele can find contributors who will create “top 10” lists devoted to Australia, the EU, and the UK.  In the meantime, some of the noteworthy developments of which I am aware include Australia’s National Legal Profession Reform, which has been percolating for years; the UK’s updated SRA Handbook, which uses an outcomes-focused approach to regulation; the UK Legal Services Board’s request for research and advice on many issues, including the “cab rank” rule for UK barristers.  Its reports and research initiatives are important sources of information, along with consultations by the Legal Services Board, the Solicitors Regulation Authority, and the Bar Standards Board.  Noteworthy EU developments include: 1) the September 2012 European Court of Justice case that denied in-house counsel the right to appear before it (following up on the 2010 Akzo Nobel case which also took a restrictive view of the rights of in-house counsel); 2) the ongoing work on the E-Justice portal; 3) the ongoing ten year review of the EU’s Lawyers Establishment Directive [98/5]; and 4) a number of important money laundering developments including the European Court of Human Rights Michaud case, and a review of the 2005 EU money laundering directive which is expected to lead to the issuance of a new directive. 

Further information on all of these developments will appear in Laurel S. Terry, Transnational Legal Practice Developments Outside the U.S.: 2010-2012, 47 Int’l L. __ (2013)(forthcoming).