Legal Ethics Forum

James E. Moliterno, "The Trouble with Lawyer Regulation"

Article. Abstract:

The American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers’ efforts to change their own practices and entrepreneurs’ efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late-arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs the society of what could be a positive role of the legal profession in time of change, and it deprives the profession itself of being as robust and successful as it could be.

"PROJECTIONS FOR LAW SCHOOL ENROLLMENTS AND PROFILES FOR FALL 2013"

Jerry Organ, at Legal Whiteboard, slices and dices the numbers about enrollment for 2013. With the possibility that applicants will nearly equal the number of available seats, everyone is wondering about whether schools will reduce enrollment or accept applicants with lower scores.

And what will happen three years from now? Assuming that law schools admit thousands of students with much lower incoming credentials, will the bar exam committees loosen their standards on the MBE? Will be see record levels of bar exam failures? Assuming that law schools admit students with much lower credentials, will those schools change their curriculum and pedagogy to help maximize bar passage rates three years from now?

Zimmerman trial: former prosecutor says court technician destroyed evidence

[UPDATE; The original story isn't there anymore, so find it here. ]

"Former prosecutor Wesley White said he was ethically obligated to reveal that Fourth Judicial Circuit Information Technology Director Ben Kruidbos retrieved the data that weren't turned over"

"'I'm an officer of the court and I'm obliged to inform the court of any misconduct or any potential misconduct coming before the court. Whether it's by the defense or prosecution,' White said."

UPDATE: As I noted here, I don't believe that the proseuctor could ethically charge murder two, and the manslaughter seems to be a real stretch.

2nd UPDATE: I cannot tell if the evidence that the judge excluded today (the texts, etc.) was the same evidence that was allegedly spoliated. I was suprised at the judge's ruling that the texts were not properly authenticated, as it seemed to me that there was plenty of evidence to get them before the jury (e.g., two levels of passwords, etc.). Are there any evidence experts out there who can comment on whether the exclusion is typical of how judges rule on the authenticity of text messages? (It seems especially tough to make that ruling against someone facing a murder two charge.) Assuming the texts were the allegedly spoliated evidence, does her ruling serve to insulate the state and the proseuctor's office? That is, what role would the inadmissibility of the evidence play in the judge's upcoming decision about spoliation? (I realize that the trail is a moving target, so if I have the facts wrong, I would be grateful for a polite correction from a reader.)

Read more here: http://www.miamiherald.com/2013/05/29/3422519/lawyer-zimmerman-prosecutor-withheld.html#storylink=cpy

Read more here: http://www.miamiherald.com/2013/05/29/3422519/lawyer-zimmerman-prosecutor-withheld.html#storylink=cpy

Casey Flaherty's slide deck about lawyers and technical competencies

Here is a slide deck from Casey Flaherty, addressing the need for lawyers to develop technical comptence. Andy Perlman and I both posted about it. (I was surprised that the slide deck didn't mention dictation. The new dictation software is very good and it's a real time saver.)

 

George W. Conk, "People's Electric: Engaged Legal Education at Rutgers-Newark Law School in the 1960's and 1970's"

Article. George runs the Otherwise Blog, which is worth checking out. Abstract:

Rutgers-Newark Law School was the most innovative, exciting, and effective law school in the 1960's and 1970's. Civil rights and liberties, 'poverty law', women's rights, employment discrimination, open housing, and public education were the foci of legal education at Rutgers - Which is the State University of New Jersey. In those two decades Rutgers-Newark - which we affectionately called People's Electric - developed a model of engaged legal education that was and is unique.

No other law school of its era - and perhaps since - to my knowledge has been so thoroughly characterized by a broad progressive social agenda. Affirmative action, racial justice, women’s rights, public education, open housing, and civil liberties were the focus of the frequently landmark litigation which originated or was substantially aided by students and faculty from Rutgers Newark.

The unique activism of Rutgers-Newark - a small public law school in an afflicted city - had a huge impact in the development of the law. The activist faculty and the clinics engaged law students deeply in innovative and intense litigation regarding the most important and controversial issues of the day. Students at People’s Electric learned first-hand the law-making function of the courts. They often helped make that law. No other law school in the country can begin to match its record in the 1970's. This was accomplished without endowment, without a base of high ranking or wealthy alumni, without a tradition of such activism at the school, a public law school whose tuition was nominal. Students learned from extraordinarily talented lawyers who they assisted. Their successes showed students how to succeed by really trying. We left Rutgers confident that we knew how to and could change the law, confident that we could make a difference.

Graduates continued the mission in many ways. One outstanding example is the cadre who joined the Office of the Public Defender - a statewide agency - which led or participated in the defense of over two hundred capital trials from 1982-2007 when the death penalty was repealed and replaced with life without parole. There were no executions.

Tax charges used to target on political grounds (May 29, 1960)

[This post is a truncated version of a post I made three years ago.]  

I was given an original copy of the Washington Post (my hometown) for the day I was born: May 29, 1960. Believe it or not, all those news stories were in the paper that day, 53 years ago.  To keep a feel for the original, I will use some of the out-dated terminology that was used back then.  Below the jump is the editorial about funding more federal judgeships. 

• An all-white Alabama jury acquitted Rev. Martin Luther King, Jr., of perjury on his tax returns.  A “Negro reporter” was ejected from the closing arguments when he sat in a section reserved for whites. [Alabama would go after Rev. King again, unsuccessfully, on perjury charges related to taxes.]

• Khrushchev said of Eisenhower, “Everybody knows that the President of the United States has two duties: The first is to play golf and the second is to be President, and golf-playing is more important.”   

• The Post surveyed jurors and reported that “they frequently found lawyers’ arguments monotonous.”

• Communists almost duped a lawyer into giving them aerial photos of Alaska.  They tricked him into acquaintanceship by playing to his enthusiasm for Esperanto.

•  Sen. Al Gore was being quoted about foreign policy.     

Here is the WaPo editorial about Chief Justice Warren’s request for more federal judges.

Editorial

With Chief Justice Warren pleading once more for enough federal judges to keep abreast of the courts mounting workload, Atty. Gen. Rogers has pointed to one way in which the present impasse on the judgeship bill can be broken. Let the bill be passed to the present session of Congress, he said, and if Congress is not willing to make an effective immediately, let it be made effective early next year. This would enable the new president to name all the 45 new judges for whom the courts are clamoring.

The president had previously offered to divide the proposed new judgeships equally between Democratic and Republican nominees if Congress would enact the bill. That eminently fair and reasonable proposal was not enough to jar the leaders on Capitol Hill into giving courts the manpower they need. Even if the bill should be belatedly enacted in the next few weeks, there would be precious little opportunity to recruit the best available man for the bench in many states and get their nominations confirmed before the scheduled adjournment of Congress in July.

But some time could be saved in the mounting backlog of 75,000 cases could be more promptly attacked if Congress would act now so that the next president could have enough judicial nominees ready for confirmation early 1961. Failure to act this year would force the next Congress to start from scratch and thus delay for at least another year and a start towards restoring the concept of speedy justice that has been so badly blurred.

"Accused Fort Hood gunman plans to represent self at trial"

I imagine the prosecutor and judge would want it differenty, but according to this Chicago Tribune account, "Major Nidal Hasan will ask a U.S. military court on Wednesday to rule he can represent himself at his trial this summer which could bring the death penalty on charges he killed 13 people in a 2009 shooting rampage."

Excerpt: "[The judge] has little choice but to grant Hasan's request to represent himself under U.S. law, which could pose problems for prosecutors and create more avenues for appeal, the military law experts said. [The judge] is likely to appoint lawyers to assist Hasan."

Entry level hiring & Professional Responsibility (as usual, we're not hot)

Prawfsblawg has a spreadsheet of 118 entry level hires for law professors. One lists Professional Responsibility as the top area of focus, another 5 list PR as a lesser area of focus, and one lists Legal Profession as a lesser area of focus. As usual, our topic is not hot.

Will Courts Drag the Bar Into the 21st Century: The Latest Chapter

New York Chief Judge Jonathan Lippman today announced a committee to study "the role that appropriately trained and qualified non-lawyer avocates can play in bridging New York's justice gap."  This follows a Washington State rule that allows for licensed paralegals with limited authority. And the California State Bar is studying the same issue. 

Meanwhile, the bar has categorically refused to investigate how educated and character-tested non-lawyers may participate in the delivery of legal services and how that participation will help make legal services available to those who cannot now afford them but can afford something. The fact that the near-poor are largely cut off from legal help in civil matters has been long decried and as long uncorrected. 

Given the traditional bar's new competitors (outsource companies; differently trained lawyers abroad in differently constituted firms; compliance officers who, after all, advise on compliance with law; companies selling computer-driven legal advice like Turbo Tax sells tax help; Axiom and its competitors), you'd think the organized bar would want a seat at the table, if only to help formulate adaption to the new world that technology and cross-border practice entail. 

Sadly, not demonstrably. "If I don't recognize what's happening, it can't be happening," is not an attribute of leadership. 

SCOTUS issues IAC opinion; exception allows convicted to raise IAC after direct appeal in some cases

ScotusBlog has the details: "In Trevino v. Thaler, in an opinion by Justice Breyer (but announced by Justice Kennedy, because Justice Breyer was absent), the Court held by a vote of five to four  that when a state’s procedural framework, by reason of its  design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise on direct appeal a claim that his trial counsel provided ineffective assistance, the good cause exception recognized in Martinez v. Ryan applies."