1615 J Street
Sacramento, CA 95814
- Hon. Maryanne Gilliard, Sacramento Superior Court & Alliance of California Judges
The Federalist Society offers a unique opportunity to acquire one hour’s worth of ethics CLE credit.
Our experts in legal and judicial ethics will discuss several recent cases and regulatory developments in the field, with an eye towards translating these developments into practical wisdom about their likely impact on law practice in 2017 and beyond.
The following topics will be discussed:
Unauthorized Practice of Law and Its Growing Implications for Lawyering
We will examine some of the recent developments in UPL and its application to the delivery of legal services. New business structures and services are beginning to test the old legal concepts. And, as some recent cases illustrate, the ABA’s modification of Model Rule 5.5 may now be outdated.
Recent Developments in Attorneys’ Fees
As practice continues to evolve, the ABA, the state bars, and some courts have provided more guidance on lawyer issues relating to attorneys’ fees. In some cases, lawyers are using creative language to protect their rights and in other cases, client protection remains an important interest.
A Sampling of Ethical Pitfalls in the Electronic Age
Many seminars and much advertising tout the virtues of establishing or enhancing a lawyer or a firm's online presence and technical tools. Increasing business, facilitating lawyer-client communications, and better managing litigation are only a few of the benefits that can result. But there is a dark side to the adoption of Electronic Age technology as well. Chief among the dangers is the unauthorized disclosure of client confidences, through inadvertence or third party mischief, but that hardly exhausts the dangers. Recent cases and ethics opinions reveal an array of other difficulties that can arise.
As an increasing number of American lawyers handle more matters that touch on more than one state, the rules governing lawyer advertising in various formats have become less and less uniform across state lines. Every state has rules that are based on Part 7 of the Model Rules of Professional Conduct, but almost every state made detailed and widely varying amendments before local adoption. The ABA has begun formal consideration of a proposal developed by the Association of Professional Responsibility Lawyers (APRL) that would greatly simplify the Model Rules provisions, while eliminating most regulations that speak to matters of taste rather misrepresentation or other harms to clients.
On August 14, 2017, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States issued a decision in which, among other things, it affirmed the order of the Sixth Circuit Judicial Council directing a federal judge to undergo a mental health examination and to submit to any treatment or counseling deemed necessary. The Committee found that part of the order to be “warranted and permissible.”
The Constitution establishes the judicial power in Article III and provides, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” The constitutional remedy for bad behavior is impeachment. In 1980, though, Congress enacted the Judicial Conduct and Disability Act, which provides authority to a special committee to “conduct an investigation as extensive as it considers necessary.” 28 U.S.C § 353(c).
As one commentator has noted, “The investigation ... appears to move into uncharted territory for disciplinary cases.” Does a Circuit Judicial Council have the authority to require a federal judge to submit to psychological testing? If so, what showing is necessary? Simple cantankerousness can’t be enough, but where is the line between being a curmudgeon and being mentally ill? Do the federal courts have a mechanism for figuring that out?
Join us for a discussion of the Committee’s decision and its implications.
Is it a violation of the first amendment for the American Bar Association to impose a nationwide speech code for lawyers? Professor Eugene Volokh of the UCLA School of Law discusses the newly proposed Rule 8.4(g) of the ABA's Model Rules of Professional Conduct, a set of anti-discrimination guidelines for lawyers that would bind lawyers to adhere to particular speech codes in the states that have adopted it.
In August 2016, the American Bar Association (ABA) added new anti-discrimination guidelines for lawyers to its Model Rules of Professional Conduct through section 8.4. This section now binds lawyers to adhere to particular speech codes in the many states that have adopted it.
The provision labels engagement “in conduct that [a] lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The ABA has defined discrimination and harassment to include “harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature." The conduct guidelines extend to “the practice of law," including, “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and other while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."
Some have described this section as infringing on the rights on lawyers to speak their mind, while others have argued it is necessary to prevent discrimination within the profession. This debate will discuss the implications of Model Rules of Professional Conduct 8.4 and its impact on workplace discrimination and lawyers' rights.
This debate was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.
Debate: ABA Model Rule 8.4
11:15 a.m. -12:30 p.m.
Jerome Greene Hall 104
Columbia Law School
New York, New York