Legal Ethics Forum

Regulatory appointee criticizes staff lawyers in speech "hypo" (aftermath of San Bruno pipeline explosion)

2013-06-19T12:19:16-04:00

We previously covered the interesting story of the dispute between staff attorneys at the California Public Utilities Commission (CPUC) and the political appointee, Frank Lindh, who oversees the lawyers. Following the catastrophic pipeline explosion and fire in San Bruno (LA...

"Most Leading Law Firm Insurers See Rise in Malpractice Claims Frequency, Severity"

2013-06-19T03:56:00-04:00

Ames & Gough has another of their surveys out. Excerpt from press release: What’s driving the claims volume? “The key impetus is the recession of 2007 to 2009,” said Ms. Garczynski, although many of these claims are still working their...

"Justice Department Fought to Conceal NSA’s Role in Terror Case From Defense Lawyers"

2013-06-19T03:24:00-04:00

Story at Wired. Excerpt: "When a senior FBI official told Congress the role the NSA’s secret surveillance apparatus played in a San Diego terror financing case today, nobody was more surprised to hear it than the defense attorney who fought...

James E. Moliterno, "Ethics 20/20's Successfully Achieved its Mission: It 'Protected, Preserved, and Maintained'"

2013-06-19T03:07:00-04:00

Article. Abstract: The legal profession tends to look inward and backward when faced with crisis and uncertainty. Greater advances could be made by looking outward and forward to find in society and culture the causes of and connections with the...

"The NYT, Zach Braff, and the Ethics of Kickstarter-ing "

2013-06-18T12:22:14-04:00

Christine Hurt offers thoughts (and mostly criticism) at Conglomerate about the NYT "The Ethicist" column. Although I haven't read the current column, I too was consistently disappointed with The Ethicist in general.

More on Maracich v. Spears

2013-06-18T03:56:00-04:00

Overlawyered has more discussion of the case we mentioned yesterday dealing with a statute that protects the privacy of drivers' data but does provide an exception for litigation uses of that data. The SCOTUS held that solicitation of clients does...

Lydia Pallas Loren, "The Viability of the $30 (or Less) Casebook"

2013-06-18T03:02:00-04:00

Article. Abstract: It is not uncommon for a new hardbound copy of today’s law school casebooks to exceed $200. And, each year, the prices inch ever higher. After exploring the various dynamics in the traditional publishing market that have led...

Nussbaum and Wolf - In Defense of the Third Year of Law School

2013-06-17T15:51:25-04:00

Martha Nussbaum and Charles Wolf have published an editorial on Bloomberg that defends the third year of law school. Some of the comments to the piece impugn the authors as out-of-touch and insensitive to the plight of indebted graduates. However,...

Ninth Circuit: Batson challenge rejected after prosecutor claims mistake was made

2013-06-17T12:12:02-04:00

Ninth Circuit Blog brings news of Aleman v. Uribe, a case where the prosecutor struck a Hispanic potential juror and explained that the strike was based upon a mistake rather than on discriminatory motive.

Two new SCOTUS decisions dealing with lawyers and lawyering

2013-06-17T11:09:01-04:00

Maracich v. Spears: Lawyers use of DMV records for solicitation was barred by statute; the litigation exception in the statute did not encompass solicitation of clients. Opinion here. Pages 20-26 weigh the interests of attorneys doing the soliciting and interests...

Top 350 firms grew 1.1% in last year

2013-06-16T18:46:31-04:00

ABA Journal. Down from 1.7% the prior year. By the time you pass No. 200, you start reaching the firms with more partners than associates, so we're not just talking about the leveraged firms.

"Affirmative action ruling contest: race vs. class" (Analysis article from AP)

2013-06-16T11:36:42-04:00

Here. (h/t: How Appealing) UPDATE: The topic is discussed at Concurring Opinions and in this NYT op-ed written by Sherrilyn Ifill titled, Race vs. Class: The False Dichotomy.

Andrew Flavelle Martin, "Legal Ethics Versus Political Practices: The Application of the Rules of Professional Conduct to Lawyer-Politicians"

2013-06-16T03:59:00-04:00

Article. Abstract: Canadian legal ethics has paid little attention to how the rules of professional conduct for lawyers apply to lawyer-politicians – that is, politicians who happen to be lawyers. This article addresses this issue with reference to what Canadian...

Lorin Geitner, "Social Architecture and the Law: Law, Through the Lens of Religion"

2013-06-15T03:57:00-04:00

Article. Abstract: How can we account for the differing popular images of attorney in various countries? One way of doing so may be to bring a paradigm developed in religious studies to examine the most publically accessible and prototypical venue...

Bryan Garner offers thoughts on lawyers and lying -- Is it ever OK?

2013-06-14T17:22:11-04:00

ABA Journal carries Garner's new article on lying. Garner doesn't analyze the question using the categories that the ethics rules and the law of fraud use, but it's a nice article nonethless. Excerpt: "Is it ever justifiable for a lawyer,...

If you act now! (Law school for no tuition if you accept right away)

2013-06-14T14:11:50-04:00

Above the Law posts some news that's either too hard to believe or, in this economy, all too easy to believe. In an effort to fill seats with strong students, a law school sent out this email: We are excited...

California task force recommends law student pro bono & practical skills

2013-06-14T09:44:14-04:00

As we've discussed before, the external regulation of law schools continues apace. Once you have California and New York requiring pro bono or certain types of courses, you're getting close to a national standard, given that each state contains about...

ReInvent Law London 2013 is Kicking Off Now - Follow It Live via Twitter!

2013-06-14T06:06:54-04:00

We're about to kick off ReInvent Law London 2013. The featured lineup of over 20 speakers includes QualitySolicitors Chief Executive Craig Holt, the Legal Services Board's Chief Executive Chris Kenny, and Richard Susskind on "The Past, Present, and Future of...

Neil Hamilton, "Law-Firm Competency Models and Student Professional Success: Building on a Foundation of Professional Formation/Professionalism"

2013-06-14T03:57:00-04:00

Article. Abstract: Both law students and law schools have an opportunity created by the convergence of (1) significant employment market changes for law graduates, (2) sharp declines in law school applications, (3) increased applicant attention to each school’s employment outcomes,...

Donald J. Smythe, "Estimating Law Schools' Cumulative Passage Rates on the California Bar Exam: Some Observations and Conjectures"

2013-06-13T23:26:00-04:00

Article. Abstract: This article uses data reported by the State Bar of California to estimate, evaluate, and compare law schools’ cumulative passage rates on the California bar exam over the periods from 2007 to 2012 and 1997 to 2012. It...

Philip G. Schrag, "MOOCs and Legal Education: Valuable Innovation or Looming Disaster?"

2013-06-13T12:04:20-04:00

Article. (I taught a partially online PR course and was told that one faculty member had called it "the beginning of the end." But why not outsource certain parts of the course -- especially exposition of the basics -- to...

Magdalene D'Silva, "Comparative Professional Responsibility and Legal Ethics Education: Privilege in Global Legal Services"

2013-06-13T03:56:00-04:00

Article. Abstract: This paper discusses the impact of globalisation on Australian professional responsibility and legal ethics education by a brief critical analysis of the doctrine of client/legal professional privilege in global legal services such as international arbitration. The analysis is...

Maj. Hasan: Pro se representation, shadow counsel, and unpalatable theories of imperfect necessity

2013-06-12T16:11:16-04:00

One of the issues I continue to find interesting is the criminal defense counsel's dilemma when an accused wants to present a defense that seems nonsensical to practical lawyers. The defenses of John Brown and the Unabomber are paradigmatic. According...

Gemma E. Smyth, " Lulling Ourselves into a False Sense of Competence: Learning Outcomes and Clinical Legal Education in Canada, the United States and Australia"

2013-06-12T03:54:00-04:00

Article. Abstract: Over the past several years, the regulation and accreditation of legal education in most common law jurisdictions is shifting significantly, with greater emphasis on ‘outcomes’ or ‘outputs’. In Canada, the Federation of Law Societies of Canada is entering...

Pennsylvania Judge Reportedly Under Investigation for Wife's Receipt of Referral Fees

2013-06-11T13:49:43-04:00

This interesting story was forwarded to me by a former student. Apparently over the course of several years and while working in her husband's chambers, a lawyer made a number of referrals to prominent personal injury firms and earned significant...

Douglas NeJaime, "Cause Lawyers Inside the State"

2013-06-11T03:15:00-04:00

Article. Abstract: Scholarship on the legal profession tends to situate cause lawyers in a state of adversarial tension with government lawyers. In this conventional account, cause lawyers challenge the agenda of government attorneys, who represent institutional interests and the status...

Judith McMorrow, "In Defense of the Business of Law"

2013-06-10T03:10:00-04:00

Article. Abstract: This article focuses on three current professionalism challenges in the U.S. legal profession: (i) the problem of neglect, poor client communication, and poor management of client funds; (ii) the need to improve the ethical infrastructures in practice settings...

More on the Confidentiality Implications of Hunter v. Virginia State Bar

2013-06-09T20:20:44-04:00

In February, we had a useful discussion about the Virginia Supreme Court's decision in Hunter v. Virginia State Bar. In one part of Hunter (see page 18), the Court held that lawyers have a First Amendment right to reveal and...

Richard Zitrin, "Guard Your Clients' Public Secrets"

2013-06-09T17:21:45-04:00

We previously posted about the Virginia disciplinary case against Horace Frazier Hunter, a criminal defense lawyer who blogged about his cases and used his clients' actual names without consent. When the case reached the Supreme Court of Virginia, it held...

Sherri Lee Keene, "One Small Step for Legal Writing, One Giant Leap for Legal Education: Making the Case for More Writing Opportunities in the 'Practice-Ready' Law School Curriculum"

2013-06-09T03:08:00-04:00

Article. Abstract: Legal writing is more than an isolated practical skill or a law school course; it is a valuable tool for broadening and deepening law students’ and new attorneys’ knowledge and understanding of the law. If experienced legal professionals,...

Samantha Moppett, "Lawyering Outside the Box: Confronting the Creativity Crisis"

2013-06-08T03:07:00-04:00

Article. Abstract: The Great Recession was not only a defining moment in world history and for the United States economy; it was also a turning point for the legal profession. The economic downturn resulted in a long-term structural adjustment in...

New Ethics Opinion Discusses Duty to Disclose Fraud Against a Tribunal

2013-06-07T20:44:54-04:00

In New York, the only mandatory exception to the duty to preserve client confidences is contained in Rule 3.3 of the Rules of Professional Conduct. Rule 3.3(a)(3) provides that “If a lawyer, a lawyer’s client, or a witness called by...

Now That We Know About PRISM and Similar Programs, How Does that Affect Client Confidentiality?

2013-06-07T18:13:43-04:00

Two days ago, the Guardian reported that Verizon was providing massive amounts of data to the U.S. Government. Some people freaked out, but others told us not to worry because it's only "metadata" - in other words, the Government isn't...

Indifference to appellate court's scheduling orders leads to dismissal of appeal

2013-06-07T03:16:00-04:00

Justia has news of a Second Circuit decision, RLI Ins. Co. v. JDJ Marine, Inc.

"Limited Scope Representation: An Issue of Access to the Bankruptcy System"

2013-06-07T03:10:00-04:00

At Credit Slips, Lois Lupica and Nancy Rapoport discuss the possible use of limited scope representations to ameliorate the difficulties faced by pro se bankruptcy filers.

Bruce Green & Jane Moriarity, "Rehabilitating Lawyers: Perceptions of Deviance and Its Cures in the Lawyer Reinstatement Process"

2013-06-07T03:06:00-04:00

Article. Abstract: State courts’ approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that “moral character” is a stable trait that reliably predicts whether an individual will be...

Government lawyers and the settlement following the San Bruno gasline explosion (Who decides? The staff or the appointee?)

2013-06-06T16:18:55-04:00

KQED carries a story about the legal team from the California Public Utilities Commission stepping off the case, apparently because of a disagreement with superiors about how to handle the settlement with PG&E following the catastrophic gasline explosion in San...

Florida adopts "Code for Resolving Professionalism Complaints"

2013-06-06T12:19:59-04:00

Order here. This appears to create a process for handling complaints rather than yet another professionalism code. (h/t: Legal Profession Blog) Excerpt: As a first step, the Professionalism Commission has concluded and now proposes that we should not attempt to...

"Non-Profit Plaintiff Prevailing On Preliminary Injunction Which Materially Altered Relationships Entitled To Fee Recovery Unless Exceptional Circumstances Show Otherwise"

2013-06-06T03:21:00-04:00

California Attorney's Fees Blog has the story about a new Ninth Circuit opinion on attorneys fees.

Deborah R. Gerhardt & Jon P. McClanahan, "Do Trademark Lawyers Matter?"

2013-06-06T03:11:00-04:00

Kate Spelman pointed me to this interesting article by UNC's Deborah Gerhardt and Jon P. McClanahan, which looks at the outcomes for trademark applicants that are lawyered-up vs. ones who aren't. A while back, we saw an article analyzing whether...

"Cheaper by the Hour: Temporary Lawyers and the Deprofessionalization of the Law"

2013-06-06T03:00:00-04:00

Law and Politics Book Review. Book by Robert Brooks; review by Mark Kessler. (h/t: Patrick O'Donnell) Excerpt: In this fascinating ethnography combining participant observation and interviews, Robert A. Brooks makes the case that the use of temporary contract lawyers by...

Law-yer or Loy-er? (part 2 of a continuing series)

2013-06-05T17:59:47-04:00

We tackled this important topic previously. Now, Josh Blackman's blog guided me to this page showing terrific maps of regional pronunciation as tallied by Professor Bert Voux and as displayed by graduate student Joshua Katz.

Conflicts of interest in legal education

2013-06-05T14:10:37-04:00

John's post below raises a question I've been thinking about for awhile: how do we, as law professors, identify and handle the conflicts of interest that arise in legal education? The dispute underlying the Phoenix complaint looks in many ways...

Make Patent Trolls Pay in Court (NYT Op-ed by Chief Judge Randall Rader (Fed. Cir.), Colleen Chien, and David Hricik)

2013-06-05T13:18:00-04:00

The op-ed suggests that federal judges already have the tools to impose costs on patent trolls. (As you may know, there are a number of proposals around to make it harder to be a patent troll. What are the incentives...

"Defence counsel not alter egos of clients: judge"

2013-06-05T03:46:00-04:00

LawTimesNews (Can.): "Defence lawyers aren’t the alter egos of their clients, a Superior Court judge said in a recent ruling denouncing what he called a misunderstanding of a client-solicitor relationship. Questions around how to direct the case and what questions...

Matt Nichol, "Transnational Legal Education: A Comparative Study of Japan and Australia"

2013-06-05T03:41:00-04:00

Article. Abstract: Legal education is transnationalizing. The legal classroom is globalizing in that a university’s classroom is not defined by walls but is now mobile through technology and international university affiliations. The legal classroom itself is globalized, composed of local...

Law school plotted to sabotage its own students?

2013-06-04T14:46:09-04:00

These allegations bother me. Two former professors at Phoneix School of Law have brought a wrongful termination suit in which they allege that the school concocted ways to prevent law students from successfully transfering to other law schools. ABA Journal....

Justice O'Connor: elected judges are politicians

2013-06-04T03:57:00-04:00

Chicago Tribune. Quote from Justice O'Connor's recent Lecture on History, Ethics, and Law: "“I think there are many who think of judges as politicians in robes. In many states, that’s what they are.” (h/t: Above the Law) The article notes:...

Dave Holness, "Recent Developments in the Provision of Pro Bono Legal Services by Attorneys in South Africa"

2013-06-04T03:22:00-04:00

Article. Abstract: This paper focuses on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. In this regard there have been and continue to be considerable gaps between the...

You could see this coming: "Congress Probing Chief Counsel’s Office in Washington in IRS Scandal"

2013-06-03T19:18:38-04:00

You could see this coming a mile away and now the story has been broken at the National Review. (I posted about it the morning after the story broke, and then again here, about a week later. Although I mentioned...