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Professional Responsibility of Lawyers

Residual Class Action Awards: Cy Pres - Podcast

Litigation Practice Group Podcast
Brian T. Fitzpatrick, Theodore H. Frank March 21, 2014

gavel money

Cy pres (from the French cy pres comme —“as near as possible”) originated in the trust context, but has more recently been applied to class action litigation, as courts try to determine what to do with sometimes significant amounts of settlement funds remaining after all identified plaintiff awards have been made.  In recent decades, courts have agreed to award such remaining funds to third party recipients who, while not parties to the underlying suits, are deemed worthy by the court.  Sometimes, the courts have selected these third party recipients based on recommendations from the attorneys representing the plaintiffs.  What are the legal underpinnings for such awards to entities or people not party to the underlying case?  What are the policy considerations in making or prohibiting such awards?  These and other questions were discussed by our experts.

Featuring:

  • Prof. Brian T. Fitzpatrick, Vanderbilt University Law School
  • Mr. Theodore H. Frank, Founder and President, Center for Class Action Fairness and Adjunct Fellow, Manhattan Institute Center for Legal Policy

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Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection? - Event Audio/Video

2013 National Lawyers Convention
Scott W. Johnson, Margaret A. Little, Thomas D. Morgan, Alan B. Morrison, David Stras, Jack J. Park Jr. November 25, 2013

Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection? - Event Audio/Video

In 1990, the Supreme Court unanimously held that an integrated state bar association, which all lawyers licensed in a state must join, could not use the compulsory dues paid by its members to pursue political or ideological activities unrelated to regulating the legal profession or improving the legal system.  Keller v. State Bar of California, 496 U.S. 1 (1990).  The Court explained, “[T]he extreme ends of the spectrum are clear:  Compulsory dues may not be extended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected to disciplining members of the Bar or proposing ethical codes for the profession.”  Id., at 15-16.

In the nearly 25 years since the Court decided Keller, the entities empowered to promulgate ethical rules binding on the lawyers practicing in a state have imposed a variety of regulations, some of which are more closely and clearly related to the regulation of the legal profession than others.  Requirements like continuing legal education and contributions to client security funds are generally seen to fall within the scope of permissible regulation.  The imposition of mandatory diversity training in Minnesota and a requirement that law students perform a specified number of hours of pro bono work as a condition to their becoming licensed to practice in New York look different.

Should state regulation of the bar be limited to imposing rules whose purpose is the protection of client interests?  Or, can the regulators impose rules designed to make lawyers “better” people in the belief that “better” people will better serve their clients?  How far can the organized bar go in “proposing ethical codes for the profession?”  To what extent do programs like mandatory diversity training and requiring law students to perform a specified number of pro bono hours serve the interests of clients?

The Professional Responsibility & Legal Education Practice Group hosted this panel on "Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?" on Saturday, November 16, during the 2013 National Lawyers Convention.

Professional Responsibility: Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?
10:45 a.m. – 12:15 p.m.

State Room

  • Mr. Scott Johnson, Co-Founder and Contributor, Power Line Blog
  • Mrs. Margaret A.? Little, Partner, Little and Little and Director, Pro Bono Center, The Federalist Society
  • Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School
  • Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School
  • Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court
  • Introduction: Mr. Jack Park Jr., Of Counsel, Strickland Brockington Lewis LLP

Mayflower Hotel
Washington, DC

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Trevino v. Thaler and McQuiggin v. Perkins - Post-Decision SCOTUScast

SCOTUScast 6-21-13 featuring Ward Campbell
Ward Campbell June 21, 2013

Ward CampbellOn May 28, 2013,  the Supreme Court announced its decision in Trevino v. Thaler and McQuiggin v. Perkins.  Both cases involve procedural issues relating to habeas proceedings.

The question in Trevino involved the Court’s 2012 decision Martinez v. Ryan, which holds that ineffective assistance of counsel in state post-conviction proceedings--with regard to claims that could not be raised on direct appeal--excuses the defendant’s failure to raise such claims in the state post-conviction proceedings, and therefore allows him to raise them for the first time in a subsequent federal habeas proceeding.  The question in Trevino was whether Martinez applies when it is unclear under state law whether the claims in question could have been raised on direct appeal.

In an opinion delivered by Justice Breyer, the Court held by a vote of 5-4 that the good cause exception in Martinez does apply 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 an ineffective assistance-of-trial-counsel claim on direct appeal.  Justices Kennedy, Ginsburg, Sotomayor and Kagan joined the majority opinion.  Chief Justice Roberts filed a dissenting opinion, which was joined by Justice Alito.  Justice Scalia also filed a dissenting opinion, which was joined by Justice Thomas.

The question in McQuiggin was whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 5-4 that actual innocence, if proven, serves as a gateway through which a habeas petitioner may pass in spite of any procedural bars.  The untimeliness of a petition in such cases, the Court explained, should be treated as a factor bearing on the reliability of evidence purporting to show actual innocence.   Justices Kennedy, Breyer, Sotomayor and Kagan joined the majority opinion.  Justice Scalia filed a dissenting opinion, which was joined by Chief Justice Roberts and Justice Thomas, and by Justice Alito in Parts I, II and III. 

To discuss the cases, we have Ward Campbell, who is the Supervising Deputy Attorney General at the California Department of Justice.  Mr. Campbells’s views are his own and do not necessarily represent the views of California Department of Justice.

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New Department of Labor "Persuader" Rule: A Threat to Lawyers and Clients? - Podcast

Labor & Employment Law Practice Group Podcast
Harold P. Coxson, Michael J. Lotito, William J. Emanuel, Dean A. Reuter June 04, 2013

New Department of Labor "Persuader" Rule: A Threat to Lawyers and Clients? - PodcastA little-known labor law, enacted more than half a century ago, may soon be reinterpreted by the Obama Administration in an attempt to bolster union organizing.  The statute requires consultants known as “persuaders” to disclose to the government their clients, services provided, and legal fees.  For more than 50 years, lawyers who advised clients about employee communications, but did not communicate directly with employees, were not persuaders.  But now, under a new interpretation of “advice,” lawyers will be persuaders if they “draft, revise or provide” employee communications with a persuasive objective.  And the scope of required disclosure will be vastly expanded to encompass all “protected concerted activity.”  A law firm will be required to make full disclosure to the federal government on every one of its labor and employment law clients, even if they do not receive persuader services.  If a firm fails to comply, its top officers will face severe criminal penalties — a year in jail and a $10,000 fine.

Featuring:

  • Mr. Harold P. (Hal) Coxson, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart PC
  • Mr. Michael J. Lotito, Co-Chairman, Workplace Policy Institute and Shareholder, Littler Mendelson PC
  • Moderator: Mr. William J. Emanuel, Shareholder, Littler Mendelson P.C.
  • Introduction: Mr. Dean Reuter, Vice President and Practice Groups Director, The Federalist Society

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