Legal Ethics Forum

"What Law Schools Can Learn from Dental Schools in the 1980s Regarding the Consequences of a Decline in Applicants"

That's the provocative title of this blog post by Professor Jerry Organ, which offers a very thoughtful and clearheaded analysis of the issues many U.S. law schools are currently facing.  If you're wondering about the future of legal education, this is a must read.

Public Comments on Proposed Washington State LLLT RPC

The Washington State Supreme Court has posted proposed Rules of Professional Conduct for Limited License Legal Technicians (LLLTs) for public comment. The Washington Supreme Court recently authorized LLLTs to practice law in specific areas and within a limited scope of practice authority, and directed the Washington State Bar Association (WSBA) LLLT Board to propose several governing regulations for LLLTs, including Rules of Professional Conduct (RPC).*

The proposed LLLT RPC largely resemble the RPC for lawyers in Washington State, which in turn are based on the Model Rules. Several of the proposed LLLT RPC could affect how lawyers in Washington State practice law, including the opportunity for limited non-lawyer ownership of law practices by LLLT partners under proposed RPC 5.9. The cover sheet to these proposed LLLT RPC from the Washington State Bar Association LLLT Board summarizes several of the most challenging or notable issues in these proposed RPC. For more detailed information about the LLLT program in Washington State and its background, see this article.

*Disclosure: I served on the committee of the WSBA LLLT Board that drafted the proposed LLLT RPC, as well as on a committee that has proposed amendments to the lawyer RPC in Washington State to account for the proposed LLLT RPC.

Facebook and Zuckerberg sue DLA Piper and other lawyers for malicious prosecution

Complaint is below. In the underlying matter, forged documents were the basis for a suit by Paul Ceglia against Facebook and Zuckerberg, alleging that Ceglia owned a huge chunk of Facebook. (Ceglia's in criminal law trouble these days. We previously covered his shenanigans here, here, here, and here.) Article on the new suit at NYT.

In response to this new suit, alleging malicious prosecution and violation of New York's Judiciary Law 487, DLA issued this statment, "Facebook and Mr. Zuckerberg claim that they were damaged in those 78 days, yet a mere 10 months after DLA Piper withdrew from the case and while the litigation was still pending, Facebook went to market with an initial public offering that valued the company at $100 billion."

From a LGL perspective, I find it interesting that in the underlying suit the Kasowitz firm apparently withdrew from representing its client once the proof of the fraudulent documents surfaced. Other lawyers may have taken longer to reach the same conclusion.

Download Facebook-Summons-and-Complaint-File-Stamped-Oct-20-2014

"Supreme Court decision in Tampa case could alter judicial campaigns"

Article at Tampa Bay Tribune. Excerpt:

A case that started with a letter written by a candidate for judge in Tampa may change how judges seek office nationwide.

The U.S. Supreme Court has agreed to decide whether the First Amendment overrides certain rules that restrict how candidates campaign for judge.

The nation’s highest court accepted an appeal from former Hillsborough County judicial candidate Lanell Williams-Yulee, who was publicly reprimanded by the Florida Supreme Court in May. The state Supreme Court said she violated part of the professional code that governs the conduct of lawyers and judges, including how they campaign for the bench.

The case pits two important principles against each other — freedom of speech and public confidence in the integrity of the courts.

DOJ's new policy banning pleas with waivers of IAC

We've discussed it several times, but here is the short, new policy. (Thanks to Tigran Eldred for sending it along.)

Download Department Policy on Waivers of Claims of Ineffective Assistance of Coun...

Texas Will Revisit Ethics Opinion on Nonlawyer Law Firm Officers

The Texas State Bar Ethics Committee responsible for an opinion finding that law firms should not have any nonlawyer "officers," including chief technology officers, has decided to revisit the opinion.  The latest news is here.  Our earlier discussion is here.

Petition alleges that the Ninth Circuit is stacking the panels in the same sex marriage cases

I hesitated to post this brief from the Coalition to Save Marriage in the Ninth Circuit's litigation over the Nevada statutes, because it alleges that the Ninth Circuit has been stacking the panels in the same sex marriage cases and I have not had time to weigh the proof of that claim. It's a bold claim and I thought I'd pass it along with a huge caveat. "Random" doesn't mean "evenly," as any mathmetician will tell you, and the fact that some judges have handled more of those cases than others is to be expected. (Update: the expert's report is here.)

Deal with the District: An enforceable campaign promise against corruption

Earlier this month, I was contacted by a former student of mine, John Matthew Schwietz, who is managing the John Denney for Congress Campaign.  Mr. Denney is a candidate for Congress in Minnesota's Sixth Congressional District.  They both wanted to design a legally enforceable candidate pledge (I) not to take campaign contributions except from natural persons residing in the district and (ii) if elected, not to lobby back to Congress after serving in Congress.  Below is a draft of what such an enforceable pledge -- and contract with a separately established LLC that would be the "enforcer" -- might look like.  I am not endorsing any candidates at this time but I hope all candidates for Congress would give this type of arrangement serious consideration. 

Deal With The District

A Legally Enforceable, Money Back-Guaranteed Ethics Contract for Better Government

PURPOSE AND AGREEMENT 

I _______________ AS CANDIDATE FOR CONGRESS IN THE _____DISTRICT OF [STATE], AND LATER, IF ELECTED, AS A MEMBER OF THE UNITED STATES HOUSE OF REPRESENTATIVES (“PROMISOR”), AGREE TO TRULY HOLD MYSELF ACCOUNTABLE TO MY CONSTITUENTS BY MAKING LEGALLY ENFORCEABLE MY CAMPAIGN PROMISES AND SUBJECTING MYSELF TO THE BELOW ANTI-CORRUPTION PROVISIONS AND PENALTIES NOT CURRENTLY ENFORCEABLE AGAINST OR APPLIED TO ANY CANDIDATE FOR OR MEMBER OF CONGRESS.

IN ORDER TO MAKE THESE PROMISES LEGALLY ENFORCEABLE, I SHALL ENTER INTO A LEGALLY BINDING CONTRACT WITH [NAME OF STATE FOLLOWED BY DISTRICT NUMBER LLC] [E.G. MINNESOTA SIXTH LLC] (“MINNESOTA SIXTH”), A MINNESOTA LLC ESTABLISHED FOR THE SOLE PURPOSE OF ENFORCING THIS CONTRACT, PROVIDING THAT MINNESOTA SIXTH HAS, AT ITS OWN EXPENSE, INVESTIGATED MY INTENT TO ABIDE BY THESE PROMISES, AND BELIEVES I WILL ABIDE BY THESE PROMISES AND THAT, IF I BREAK ANY OF THESE PROMISES, I AGREE TO PAY TO MINNESOTA SIXTH, OUT OF MY PERSONAL FUNDS, LIQUIDATED DAMAGES AS SET FORTH BELOW.

AS PROVIDED IN ITS ARTICLES OF ORGANIZATION, FOR ANY SUCH RECOVERY MINNESOTA SIXTH RECEIVES FROM ANY CANDIDATE OR MEMBER FOR BREACH OF CONTRACT, AFTER PAYING ALL APPLICABLE EXPENSES AND TAXES, MINNESOTA SIXTH SHALL DISTRIBUTE ALL REMAINING AMOUNTS RECOVERED TO CHARITIES THAT SERVE, PRINCIPALLY, THE INTERESTS OF THE PEOPLE OF THE SIXTH DISTRICT.  THE ARTICLES OF ORGANIZATION OF MINNESOTA SIXTH SHALL PROVIDE THAT ITS MANAGING MEMBERS SHALL ALL BE RESIDENTS OF THE DISTRICT WHO ARE COMMITTED TO THE PRINCIPLES SET FORTH IN THIS AGREEMENT.

ANTI-CORRUPTION PROVISIONS

Prohibitions and Promises -  

1. No Conflict of Interest Campaign Contributions. Promisor shall not intentionally and directly solicit or Knowingly Accept any campaign contributions that create a conflict of interest (“COI Contributions”) with Promisor’s duty to represent, exclusively, the people of the District Promisor represents.

2  Lifetime Ban on lobbying Congress. Promisor agrees to self-impose and adhere to a lifetime ban on Lobbying back to any member or staff of the United States House of Representatives or Senate for compensation after serving any congressional term. 

3.  Definitions and Terms - 

Knowingly Accept means to expressly accept or Impliedly Accept any contribution of any legal tender.

Impliedly Accept means to spend or cash any contribution, or to fail to expressly reject any contribution within 90 days of its receipt.

Express rejection may be made in any manner reasonably calculated to give notice to donor and the public.

COI Contributions are campaign funds donated to Promisor by any political party, Political Action Committee (PAC), labor union, for-profit corporation, Special Interest Group, or any individual not residing in the State of Minnesota who is not also a Family Member of Promisor.

Special Interest Groups are industry or advocacy associations or groups that focus on particular issues, or any other group that seeks through its contributions to influence legislation. 

Family Member means any family member or immediate relative as defined by the Office of Personnel Management under 75 C.F.R. § 33491 (2010).

Lobbying shall have the same meaning as set forth in the Lobbying Disclosure Act of 1995 as amended.

4. Penalties/Damages in the Event of Breach.

Section 1. Promisor must pay out of Promisor’s personal funds, liquidated damages to Minnesota Sixth in the amount of twice the amount of the contribution in question, and furthermore, if elected, Promisor must pay liquidated damages in the amount of Promisor’s entire congressional salary for Promisor’s term as Member.

Section 2. Promisor must pay out of Promisor’s personal funds liquidated damages to Minnesota Sixth in an amount equal to Promisor’s entire earnings to date as a Member plus the agreed upon amount of Promisor’s first year salary as lobbyist.

Signed: _______________________    Date                                        

                    Candidate           

Note:  this document is a pledge to be signed by the candidate.  The contract itself is a separate document. The contract with the LLC is to have substantially similar language and is to be signed by both the candidate and a managing member of the LLC and shall state the consideration provided by the LLC to the candidate including the LLC’s efforts conducted at its own expense to ascertain the candidate’s intent to comply with the pledge, to explain the pledge to the candidate and his or her staff and to the public, and the LLC’s ongoing efforts to ascertain compliance with the pledge by all candidates in the district who sign it.  The LLC is a manager managed LLC with membership open to any resident of the district upon payment of one dollar subscription fee.   Members can elect and remove the LLC managers by majority vote.   The managers of the LLC would decide when and how to enforce the agreement on behalf of the LLC.

Elon innovates?

I've been skeptical that we'd see much innovation from law schools, but lots of people in the blawgosphere are talking about Elon's new plan: a seven semester, reduced price JD with a mandatory "lab experience with practicing attorneys." Story at ABA Journal and elsewhere. Given that it's students will be job hunting in North Carolina a half year before other NC-based students, will this put competitive pressure on rivals?

"Collectibility: An Affirmative Defense In Legal Malpractice Claim [in the State of Washington]"

News of a new Washington state decision at Legal Profession Blog.