Legal Ethics Forum

Alternative Business Structure Discussion in Canada

The Law Society of Upper Canada ABS Working Group released a discussion paper last fall and called for comment. The responses received and a summary of the responses are now available. 

AALS Program to Honor Monroe Freedman

Monroe's Hofstra colleague, Susan Saab Fortney, passes along this news:

Thanks to everyone for their reflections and words of condolence related to the passing of Monroe. As Roy Simon mentioned, from the day I arrived at Hofstra, Monroe was a supportive friend and mentor. We will keep you posted on a ceremony that our law school is planning to celebrate is life. 

Before Monroe’s death, the Professional Responsibility Section of AALS had approved of the following program for the January 2016 annual meeting: "Ethics in Criminal Practice -- The Three Hardest Questions Today:  A Conversation in Honor of Monroe Freedman."  Monroe was very pleased to know about the program.  Bruce Green and I are organizing the program and trying to make it a  double session. We are now deeply saddened that this will be now be a memorial tribute, but honored to continue the discourse that Monroe started fifty years ago with his seminal work.

In Memoriam: Monroe Freedman

Professor Ellen Yaroshefsky sends along the terribly sad news that our dear colleague, friend, and co-blogger Monroe Freedman passed away earlier today.  From Ellen's email:

It is with profound sadness that I let you know that Monroe Freedman died this morning.

Monroe was a giant, of course, in the field of legal ethics and a true original.  Revered by many, he was a prolific scholar, teacher, and advisor to generations of lawyers who relied upon his wise counsel, generosity and wit. He  was a loyal friend, father and grandfather, gentleman, and a courageous and fierce of advocate of the underserved.   

We do not yet know funeral plans but will keep you posted.

Monroe is a true legend in our field, and he has had a deep and lasting professional and personal impact on so many of us who teach and write about legal ethics.  We will miss him dearly.

Update: The Washington Post has published this fitting obituary.  And the New York Times has one here.

SCOTUS sides with FTC against against dentists: "established ethical standards may blend with private anticompetitive motives"

Discussion of North Carolina State Board of Dental Examiners v. FTC over at Marginal Revolution. The Court sided with the FTC, which had deemed anti-competitive the Board's efforts to quash un-licensed teeth whiteners.

UPDATE prompted by comment below: Our earlier coverage, with links, is here. As mentioned at that earlier link, when this North Carolina case was being briefed, there was some concern that it might affect UPL and regulation of lawyers. An earlier Ninth Circuit case (Hass v. Oregon State Bar, 883 F.2d 1453 (9th Cir. 1989)) seemed to provide state bars considerable protection under the federal antitrust laws and some thought that this case might signal a weakening of the protection that, post-Hass, most of us assumed the state bars possessed. I have been at conferences where the legal service organization folks have been very supportive of the FTC's efforts in this new case and have been hopeful the case signals future actions by the FTC to open up the legal profession's boundaries.

Over at Prawfsblawg, Kate Levine wonders if the North Carolina case will spark some challenges to UPL regulation. Perhaps someone can weigh in on this, but if the UPL rules are promulgated by state supreme courts, would there be more deference than to the Board of Dental Examiners? The formula for antitrust exemption for state regulation is something like "clear articulation of a policy, coupled with (in most cases) active supervision." In this case, the SCOTUS cited Goldfarb v. Virginia State Bar (421 U.S. 773, 791 (1975)) for the principle that although state bars are a state agency for some limited purposes, that fact does not create an "antitrust shield that allows it to foster anticompetitive practices for the benefits of its members." So perhaps there will indeed be renewed challenges.

Kathryn A. Sabbeth, "Capital Defenders as Outsider Lawyers"

Article. Abstract:

What role can lawyers play in the internal disputes of a community to which they are outsiders? This essay highlights two core rationales for outsider intervention in support of internal dissent. It examines these rationales in the case of capital defenders from the U.S. North in the U.S. South. The position as an outsider can provide the will and freedom to launch direct attacks on injustice. Frequently, outsiders also bring superior resources for the fight. When outsiders engage in direct social critique, however, they can be accused of cultural imperialism. As an alternative, outsider lawyers can marshal indirect challenges, using professional tools of conventional lawyering. Yet this can also backfire. The notion of expertise may be tainted by perceptions of an elitist invasion, and, unlike classic cause lawyering, conventional lawyering may lack a narrative with substantive moral force. The case of capital defenders suggests that to support lasting social change outsider lawyers must amplify the voices of local community members and their expressions of intragroup dissent.

H&R Block Immigration Document Services

I assume the next UPL battle is coming now that H&R Block is offering immigration document preparation services.  http://www.hrblock.com/espanol/lp/immigration-english.html

A couple of interesting points about this business model.  First, customers have to go into the stores to fill out the forms on H&R's computers.  I'm not sure why they are starting the model this way instead of letting people fill out the forms from their home computers the way customers do with tax forms.  Also, they appear to only be offering the service in their Texas offices at this time.  I'm not sure why the roll out is being limited to Texas as I'm sure there are other states with high immigration needs.  Perhaps there is something about Texas law that makes it a good forum for initial legal challenges?

More on the Howard Shipley matter

The SCOTUS disciplinary matter regarding Howard Shipley has generated a lot of internet commentary. (Links below.)

For background on the procedural history, see this article by James Ching. (It’s necessary to understand some of the procedural history before the matter reached the Court.) The matter focuses on a petition filed with the Court by Howard Shipley on behalf of an organizational client that was dominated by its founder, a strong-willed inventor, Sigram Schindler, who actively manages—actually, overmanages—his lawyers. The Court issued an order to show cause why Shipley should not be disciplined, but the Order does not specify what rules Shipley may have violated. (My earlier post had incorrectly said that the potentially unethical filing was an amicus. Although Schindler’s corporation had filed five oddly-worded amicus briefs in other matters, the present issue deals with the petition.)

As the internet discussion has progressed, we’ve seen a number of propositions discussed. For example:

1. Should the lawyer have consulted with the client about tactics and declined to file the brief in the present form? AFAIK, everyone, including me, says “yes.” There was obviously a client management problem and at some point late in the process the lawyer may have concluded that there was insufficient time to get a new lawyer in place. But it shouldn't have been filed.

2. Should the lawyer be professionally disciplined for failing to provide competent counsel? This one is difficult for me, because upon reading the petition, I do conclude that it isn’t what competent lawyers file. On the other hand, we don’t typically see professional discipline meted out when a legally sophisticated client likes the legal work and there’s no obvious causation of harm to the client based upon incompetence. Commenters to my earlier post and elsewhere do see a failure of competence. The notion is that the lawyer’s failure to exert more control over the brief led to the filing of a petition that could never be granted. The lawyer’s incompetence therefore must have hurt the client.

3. Should the lawyer be disciplined because he included a footnote giving significant authorship attribution to Schindler? The Court has “Guidelines” forbidding that. Shipley says he was unaware of that. I don’t see professional discipline for that. The brief could be stricken for that reason.

4. Should the lawyer be disciplined because the client wrote so much of the brief? Was that UPL? James Ching believes “it is clear” that Shipley aided Schindler’s UPL. Thoughts on that, anyone? If the client's CEO writes much or all of a brief and the lawyer reviews it and deems it appropriate to file, is that "clearly" UPL?

5. Should the lawyer be disciplined for the tortured syntax and odd rhetoric? In a comment to my previous post, I noted that USDC’s sometimes strike oddly worded briefs because of non-conformity with rules about “clear” presentations of argument or words to that effect and that the Court should have done that here. James Ching does a nice job laying out those sorts phrases in the Court’s rules—phrases like, “expressed concisely in relation to the circumstances of the case, without unnecessary detail,” and “short and . . . not . . . argumentative or repetitive,” and “stated briefly and in plain terms,” and ““direct and concise argument.” (I agree that the brief doesn't use "plain terms," but also note that a complaint most readers of the petition will have is that it's too concise.) Here are some passages from the petition that Ching singles out:

 “The NAIO test hence is designed to verify of a CI that it is nonpreemptive by checking the problem identified and disclosed by the specification, which to solve CI is invented for, and by deriving thereof that all inventive concepts this CI is allegedly based on are indeed indispensable for the invention’s functioning such that it solves this problem.”

The first legal claim is that the Constitution requires “instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CI[‘]s” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents[‘] framework.”

Or this heading: “THE 3 DECISIONS VASTLY INCREASE CIs‘ LEGAL SAFETY, PATENT EXPERTs‘ & USERs‘ EFFICIENCY, PATENT-NONELEGIBILITY’s CONSISTENCY.”

As I said, I would have no problem with the Court striking the brief, but is this grounds for professional discipline? What say you, readers? I'd strike it, stating specific reasons, but not formally discipline.

Howard Bashman's round-up of coverage is here and here. David Hricik has thoughts here.

[edited for clarity since posting.]

 

Launch of the New York Legal Ethics Reporter

There is a new on-line resource for legal ethics and CLE credit.  The New York Legal Ethics Reporter (NYLER) launched in January 2015.  It is a monthly publication focusing on developments in New York legal ethics and professional responsibility.

NYLER is a "reboot" of the New York Professional Responsibility Report (NYPRR), which was published by Lazar Emanuel for 13 years. When he passed and NYPRR shut down in 2012, it left a gap in the legal ethics world. Fortunately, a group of former NYPRR contributors has picked up where Lazar left off. Unlike NYPRR, a subscription to NYLER is free and the newsletter is exclusively web-based.  For the first time, all of the past NYPRR articles are available for free in the Archive section of NYLER.

Produced by Frankfurt Kurnit and the Maurice A. Deane School of Law at Hofstra University, NYLER will examine important new developments in ethics, professionalism, practice management, malpractice, discipline and other topics.

NYLER's January issue covers the noteworthy Lawrence decision on attorney fee agreements and the latest on IOLA trust accounts and compliance with Rule 1.15.  Also in the January issue is Part 1 of an article by Professor Emeritus Roy Simon – author of Simon’s New York Rules of Professional Conduct Annotated - discussing crucial developments since NYPRR last published n 2012. His exclusive article analyzes amendments to three key RPCs that took effect in 2012 — Rule 4.2 (the no-contact rule), Rule 3.8 (regulating prosecutors), and Rule 7.4 (governing claims of specialty certification).

NYLER's February issue has articles about the law firm in-house privilege, by Ron Minkoff; counseling clients about social media, by Mark Berman; and Part 2 of Roy Simon's article on developments since 2012

NYLER is also accredited to provide 0.5 CLE credits in Ethics and Professionalism to experienced attorneys who score 80% or higher on a monthly self-assessment examination based on the articles appearing that month. It’s the same kind of CLE test NYPRR used to give – only web-based and automated. (A $25 fee applies. Financial aid is available for attorneys who are unable to purchase a test due to cost considerations.)

To receive NYLER articles FREE each month by email, enter your email address at the link on the NYLER homepage.

Foley partner files response to SCOTUS regarding unorthodox [petition]

[Note: I have edited the post to correct my error in originally referring to the filing as an amicus brief. I do think the status of the filing as either petition or amicus does have a difference. (h/t: How Appealing) The objective of an amicus brief may be more related to the client's ability to exercise First Amendment rights and " have a say" than we normally expect in petitions, etc. There's been a lot of commentary on this issue and I will try a new round-up.]

Howard Shipley, of Foley & Lardner, responded to the order from SCOTUS that he explain the unorthodox [petition] he had filed on behalf of an apparently demanding and idiosyncratic client in a patent case. The [petition] was jargon-filled, odd in its rhetorical style, and full of super-condensed references. It also suggested that the client was a significant author of the piece -- which SCOTUS guidelines suggest should not be included in briefs.

Shipley's response, available below, politely affirms the right of Shipley to file such [a petition] and suggests that a technical error (i.e., acknowledging the client's participation in the drafting) should not be grounds for sanctions. (h/t: How Appealing)

What I find particularly interesting is the way that Shipley's response, authored by Paul Clement, discusses the balance between the lawyer's duties to the client and to the court.

Download Shipley Response

 

Must Justice Ginsburg Stay Out of the Same Sex Marriage Case?

My favorite conservative commentator on legal and judicial ethics has been filling my (and not I assume just my) inbox with emails arguing that Justice Ginsburg must recuse herself from the same sex marriage case. The latest  cites a NYT column by Gail Collins, now online, scheduled for Sunday.

"There She Goes Again
By Ed Whelan — February 20, 2015


"Ginsburg is planning to be on the bench when the Supreme Court decides mammoth issues like the future of the Affordable Care Act and a national right for gay couples to marry. She says she doesn’t know how the health care case will turn out. But like practically every court observer in the country, she has a strong hunch about which way gay marriage will go: “I would be very surprised if the Supreme Court retreats from what it has said about same-sex unions.”

"As I pointed out in my NRO essay yesterday, Justice Ginsburg used to understand that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might vote” and that violating that obligation “would display disdain for the entire judicial process.” But she is now publicly advertising both how she will vote (“every court observer in the country” sees her as part of any majority striking down state marriage laws) and how she expects the Court as a whole will decide the pending marriage cases.

"It’s scandalous that (to borrow from the end of my essay) she, unlike Justice Scalia in the Pledge of Allegiance case a dozen years ago, evidently isn’t “intellectually honest enough” to recognize that she is obligated to recuse herself."

---

Ed's reference to the Pledge case:

In 1993, Scalia recused himself from the then impending case -- which asked if  the reference to God in the Pledge was a violation of the First Amendment --  after he (i.e., Scalia) made a spontaneous comment during a speech:

"The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done."
 

So, is RGB talking too much? Is what she said to  Collins over the recusal line?