David Cameron Carr, at KafkaEsq, analyzes a recent comment by the president of the State Bar of California following a closely watched disciplinary trial that harmed a lawyer's career -- and then ended in a full acquittal.
Over at the Faculty Lounge, Deborah Merritt urges law professors to be familiar with their states' ethics rules. She also argues that professors should (1) pass the MPRE and (2) participate regularly in workshops related to the rules of professional conduct. I would recommend skipping the comments to the post (except for John Steele's!).
I see no harm in Professor Merritt's proposal although I'd be curious to know the percentage of law faculty who have not passed the MPRE. The MPRE has been offered since 1980, although state bars adopted it at different times, and Maryland and Puerto Rico still do not require it. Some states also do not exempt law faculty from CLE participation (including ethics CLE).
A bigger problem that John also touches on is that many law schools, including leading law schools, do not have any full-time faculty who primarily focus on legal profession and ethics research. With the faculty hiring season largely concluded, I will boldly predict that once again PR will not be hot. This has always been dismaying, but what is the justification in a time when one cannot open up a law review or magazine without reading of "unprecedented change" in the legal market and among law schools?
Story here. He was a legendary and enormously successful trial lawyer. He was also the focus of legal ethics as applied to deposition behavior. In the clip below, Jamail is the initial, questioning attorney. Notice that the question that sets off the foray is "was that your [job] title [the whole time]?" Also notice that the fight starts after "Tucker" asks whether the lawyer next to the deponent actually represents the deponent.
Cordy, J. In this case we consider whether an actionable conflict of interest arises under Mass. R. Prof. C. 1.7, as appearing in 471 Mass. 1335 (2015), when attorneys in different offices of the same law firm simultaneously represent business competitors in prosecuting patents on similar inventions, without informing them or obtaining their consent to the simultaneous representation.
The plaintiff, Chris E. Maling, engaged the defendant law firm Finnegan, Henderson, Farabow, Garrett & Dunner, LLP (Finnegan), including the three individual attorneys named in this suit, to represent him in connection with the prosecution of patents for Maling's inventions for a new screwless eyeglass. After obtaining his patents, Maling learned that Finnegan had been simultaneously representing another client that competed with Maling in the screwless eyeglass market. Maling then commenced this action, alleging harm under various legal theories resulting from Finnegan's failure to disclose the alleged conflict of interest. A judge in the Superior Court dismissed Maling's complaint for failure to state a claim under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Maling appealed, and we transferred the case to this court on our own motion. We conclude that the simultaneous representation by a law firm in the prosecution of patents for two clients competing in the same technology area for similar inventions is not a per se violation of Mass. R. Prof. Conduct 1.7. We further conclude that based on the facts alleged in his complaint, Maling failed to state a claim for relief. Accordingly, we affirm the judgment of dismissal.
The Canadian prairie law societies have released Innovating Regulation, a discussion paper addressing entity regulation, compliance-based regulation and alternative business structures. A comment and abstract are posted by Barbra Bailey, Policy Counsel, Law Society of Saskatchewan. The comment is as follows:
The practice of law and the public’s demands for legal services are changing. Driven in part by new technologies, new business models and access to justice concerns, delivery and regulation of legal services has begun evolving around the world. We have been watching significant regulatory changes in Australia, England and Wales over the last ten years. These ideas have caught on in Canada, as is reflected in the recommendations of the Canadian Bar Association’s recent Futures Report. To keep up with these changes, the Law Society must also rethink its regulation of the profession.
The Law Societies of Alberta, Saskatchewan and Manitoba are trying to stay ahead of this wave. In particular, we are examining a spectrum of regulatory tools that includes entity regulation, compliance-based regulation and alternative business structures to determine which, if any, might be effective in our jurisdictions. A discussion paper co-authored by representatives of each of these law societies represents an early step in both understanding and assessing the regulatory options available.
These new approaches to regulation do not necessarily mean more regulation, but a different approach to regulation that is more proactive. They can also mean increased flexibility and opportunity for the profession in the delivery of legal services. That’s why we want your input. The next step in examining these issues is a consultation with the profession in early 2016. In the meantime, we hope this paper will provide some background information to inform the consultation process.
I'm finding it hard to get to the bottom of this, but twoarticles suggest that the Texas State Bar has recommended that CLE provider status be denied to St. Mary's and there is a suggestion (that I cannot currently pin down or verify) that the decision was based upon the bar's belief that the CLE presentations were not sufficiently secular. Can anyone provide us with more detail about the situation?
On this day in 1859, the Commonwealth of Virginia executed Shields Green and John Anthony Copeland, two black men who had joined John Brown’s fateful attempt to free the slaves of the southern states. Although little noted in most history books, their sacrifice should be long remembered, even as our nation continues to struggle with slavery’s legacy of racism.
Shields Green was an escaped slave from South Carolina who had been introduced to Brown by Frederick Douglass. During the Harper’s Ferry raid – which began on Sunday, October 16 and lasted for three days – Green had been assigned to guard Brown’s white hostages, which drew the special ire of slave masters. One plantation owner railed at Green’s “impudence” in pointing a rifle at white men, and Virginia’s governor called Green a “coward,” although in fact he had declined an opportunity to escape and had instead remained bravely at Brown’s side until they were both captured by troops under the command of Col. Robert E. Lee.
John Anthony Copeland had been born free in North Carolina, but had moved with his family Oberlin, Ohio, when he was a child. Oberlin was the most abolitionist-minded community in the United States during the antebellum era, and Copeland had grown up in the anti-slavery movement. He had been a leader of the Oberlin-Wellington Rescue of 1858, in which he had literally wrested a runaway from the clutches of slave catchers, and he had afterward escorted the fugitive to freedom in Canada.
Copeland had been recruited to the abolitionist army by John Brown, Jr., who had traveled to Oberlin the previous summer on his father’s behalf. Arriving at Brown’s headquarters on Thursday, October 13, he scarcely had time to meet his new comrades – who numbered only 21, including Brown and three of his sons – before the historic attack on slavery began late on Sunday night.
Brown’s march into unsuspecting Harper’s Ferry was initially successful, as his men were quickly able to take control of the federal arsenal and armory. Copeland and two others were sent to capture a nearby rifle factory, which they accomplished with ease. Soon, however, the town awakened, as church bells rang the alarm. Brown and his men were surrounded by the local militia, who rained fire down upon the abolitionist positions. Ten of Brown’s men were killed in the fighting, but Brown and Green were taken alive.
Meanwhile, Copeland and his comrades staved off repeated militia attacks on their redoubt in the rifle factory. After the seventh assault, they realized that their position was hopeless and fled through the rear entrance. The other two men were shot and killed while attempting to cross the Shenandoah River. Copeland, too, waded into the river, but he was cornered by the militia and surrendered when his dampened pistol would not fire.
The prisoners were brought to nearby Charlestown, to await trial before a Virginia court. Brown was tried first and quickly convicted and condemned to death, although his inspiring speech at sentencing succeeding in stirring abolitionist sentiment across the North. Green and Copeland were tried shortly afterward. Their attorney, a Boston abolitionist named George Sennott, raised a remarkable defense that condemned the institution of slavery – but to no avail. Both black men were convicted and sentenced to hang.
Brown was executed on December 2, leaving behind a prophetic note in which he predicted that “the crimes of this guilty land will never be purged away but with blood.”
Green and Copeland faced hanging two weeks later. Interviewed by reporters on execution day, Copeland sent word to his friends and family in the North. “If I am dying for freedom,” he said, “I could not die in a better cause – I would rather die than be a slave.”
The two African-Americans were taken to the gallows in an open wagon. Once on the scaffold, Copeland attempted to address the crowd. The privilege of a final statement was routinely granted to condemned men in the nineteenth century, but the Virginians would not let Copeland deliver another denunciation of slavery. The hangman choked off his speech, pulling a hood over his head and tightening the noose. The trap was sprung and the two “colored heroes” of Harper’s Ferry were hurled into eternity.
Copeland’s family had gathered together for prayer on hanging day. Following a Bible reading, Copeland’s mother turned toward her husband and children. “If it could be the means of destroying slavery,” she said, “I would willingly give up all my men-folks.”
Slavery was indeed destroyed by the coming Civil War, sparked in no small part by the actions of Brown, Green, and Copeland. It is altogether fitting and proper that we should recall the brave men who, to paraphrase Lincoln, gave the last full measure of devotion in the battle for freedom.
In 1992, Gerald López argued that progressive lawyering requires the practitioner to rethink the practice of law, the needs of the community, and the relationship between the two. He urged progressive lawyers to rebel1against reigning (“regnant”) patterns of law and practice that serve only to reinforce the established order and alienate progressive lawyers from their natural base, the community. It is time for us to rethink the teaching of law itself, as well as how the needs of the community and our own needs have begun to converge. Can we, should we, be rebellious too, as cause lawyers are? Faculty right now stand in the middle of this quandary, as the deaths of Michael Brown, Eric Garner, and Freddie Gray, and too many others spark protests that envelop the country.
The article explores a variety of ways in which law professors can rebel, creating on-campus experiential learning opportunities for their students through clinics, externships, or service learning opportunities. Such venues can connect us with social movements struggling with class and race issues, adding their insights, problem assessment, and problem-solving skills to our own. In this fashion “rebellious” law professors can begin to follow the examples of “cause lawyering” practitioners who have been at this for quite some time now.
As we move forward, strengthening our engagement with today’s fragmented social movements and, indeed, with the communities from which we have come, we may well ﬁnd ourselves protecting the honor of our profession and our rights as faculty, and our own autonomy and agency as well. It is possible that we, and the community members with whom we engage, will learn to think outside our respective boxes together, creating a broad-based program out of their work and our own, serving all our interests.
Ruling below. From the Reuters article on the ruling:
General Motors Co and its law firm need not turn over privileged documents to drivers hoping to show that the automaker intended to commit a crime or fraud by concealing defective ignition switches in their vehicles, a Manhattan federal judge ruled on Wednesday.
Despite finding "probable cause" to believe GM committed a crime or fraud by hiding the defect from regulators and the public, U.S. District Judge Jesse Furman found no showing that the automaker and King & Spalding produced the documents with an intent to further such misconduct.
Most of the documents related to the law firm's advice from 2010 to 2013 on three crashes involving Chevrolet Cobalts. Vehicle owners said the deception justified a waiver of attorney-client privilege.
"Put simply, plaintiffs do not provide a factual basis for a good faith belief that the communications and work product they seek - let alone any particular communications or work product they seek - were made with the intent to further a crime or fraud," Furman wrote.
This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of certain guilty offenders, such as murderers or child molesters, but to representation of those who claim to be innocent and especially those who actually seem to be innocent, where a full-blown defense, through trial, would be expected to require an extraordinary commitment of time and effort from an overtaxed public defender.