Legal Profession Blog

New Jersey Favors Pro Bono

The New Jersey Supreme Court has reversed an opinion of the Advisory Committee on Professional Ethics that had ruled it an impermissible conflict of interest for pro bono participants in the Volunteer Lawyers for Justice program to provide legal services in bankruptcy matters where their firm (Lowenstein Sandler) represents creditors in unrelated matters.

VLJ’s pro bono bankruptcy program does not present a conflict of interest under RPC1.7. With appropriate safeguards, a volunteer attorney can represent a low-income debtor in a no-asset Chapter 7 bankruptcy matter even if the attorney’s firm represents one or more of the debtor’s creditors in unrelated matters.

The unanimous court found that the public policy in favor of pro bono services "informed" its decision. (Mike Frisch)

Right to Counsel 50 Years After Gideon Examined in new Yale LJ Symposium

The Yale Law Journal's final issue of the academic year, June 2013, is a thorough and compelling Symposium: "The Gideon Effect - Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright." I recommend its over 600 pages of articles from 25 leading voices, including Mike's GULC colleagues Paul Butler and Neal Kumar Katyal, and mine at Tulane, Pamela Metzger. Topics range from   civil counsel to immigration, from Guantanamo to the El Paso PD Office to international law and the EU -- in addition to detailed examinations of the central mission of providing counsel in indigent criminal defense representations. In addition to the print issue's availability from the Journal and from libraries, the Kindle at Amazon, Nook at B&N, and Apple (direct from iBooks) versions are already available for a nominal download cost (ebooks created through my Quid Pro project). It really is a law review issue that reads more like an extensive and worthwhile new book on this important subject, and IMO it is accessible to nonlawyers and others interested in the state of this fundamential right. [Alan Childress]

Related articles

Metzger on Gideon & Under-Enforcement of Sixth  Amendment Rights

Green on Gideon's Amici

Chemerinsky on Gideon

"Race and the Disappointing Right to Counsel"

 An Immigration Gideon?

Public Defender May Be Ordered By Court To Represent Defendant

The Maryland Court of Appeals held that a trial court has the authority to appoint an attorney from the local public defender ("OPD") to represent a criminal defendant if the trial court concludes that OPD has erroneously denied representation. The trial court had found (contrary to the OPD) that the defendant was indigent and thus qualified for appointed counsel. The court reversed a finding of contempt against a local public defender, who had refused to appear in court on behalf of the defendant. The attorney was following the orders of his superiors not to appear.

Chief Judge Bell, joined by two other judges, dissented. While agreeing that the case was not moot and that the contempt should be reversed, the dissent would hold that the trial court lacked the authority to compel the OPD to provide representation.

The court decided another case today and reached the same result. The dissenting judges in the above case concurred in the conclusion that dismissal of the criminal case was improper but reasserted the view that the trial court lacked the authority to interfere with the public defender's decision not to take the case.(Mike Frisch)

Fee Shifting For Pro Bono Services

The Maryland Court of Appeals affirmed a trial judge's order that a husband pay his wife's attorney's fees in a case involving custody, visitation and child support for the couple's minor children. The wife's submissions documented legal work on her behalf by a non-profit domestic violence clinic that had represented her on a pro bono basis. The trial judge awarded the wife custody of the children and ordered the husband to pay $5,000.00 to the clinic for its legal work on her behalf.

The court here rejected the claim that the fee award was improper. Fees may be awarded when it is "just and proper under all the circumstances." The fees may be paid directly to the clinic pursuant to Family Law Article provisions that govern fee shifting in domestic cases. (Mike Frisch)

No Privilege For Expert Report

In an action to enforce a disability policy issued by the defendants, the New York Appellate Division for the First Judicial Department held that a letter to the plaintiff from an expert analyzing rights under the policy was not protected by attorney-client privilege or the work product doctrine. The letter was prepared shortly before the plaintiff had retained counsel. Further:

"although the letter was prepared after defendants' rejection of plaintiff's claim...litigation was not commenced for two years. No explanation is provided for this gap between the letter's creation and commencement of litigation, indicative of uncertainty whether to pursue litigation. Absent any indication that plaintiff's attorney even knew of the letter until its disclosure by third-party defendant, we reject plaintiff's argument that the circumstances warrant an in camera review of not only the letter itself but also of the circumstances surrounding its creation." (Mike Frisch)

More On Senior Lawyers

We recently posted a link to a report of the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers concerning the special issues that face senior lawyers. The District of Columbia Bar has announced a project to provide senior lawyers with pro bono opportunities. The project hopes to give experienced and talented senior lawyers the chance to donate legal services to clients in need. (Mike Frisch)

Student Pro Bono Award

The Virginia State Bar gave its annual student pro bono award to Maryann P. Nolan, a third year law student at the College of William & Mary who devoted over 1000 hours of uncompensated or minimally compensatated public service and supervised legal services to a variety of needy clients and causes. We congratulate a rising lawyer who has set such a fine example for the profession. (Mike Frisch)

Northwestern's Colloquy Hosts Review of Deborah Rhode's Pro Bono

Isaac Peterson, the Senior Editor of Colloquy, the online supplement of the Northwestern University Law Review, dropped us a note about an interesting upcoming change of pace.

Colloquy has posted a Review Essay by Professor Tom Lininger (Oregon, right) forthcoming in the Law Review, of Pro Bono in Principle and in Practice:  Public Service and the Professions by Deborah L. Rhode.  Professor Lininger will stir the pot by advocating that the legal community exceed Professor Rhode's rather modest suggestions for curing our current pro bono crisis.  He suggests several courses of action aimed at mitigating our current dearth of altruistic legal representation — a dearth that is indisputable whether measured against other professions or other nations.  His suggestions include greater focus on pro bono practice in law schools and a mandatory minimum pro bono time commitment by members of state bars.

Stay tuned.  Colloquy will publish a response by Professor Sam Bagenstos (Wash. U.) next week, and follow it with a reply from Professor Lininger the week after.

[Jeff Lipshaw]

The Unbelievably Foolish Prospect of Shutting Down Volunteer Out-of-State Lawyers in Louisiana's Post-K Criminal Defense System

Posted by Alan Childress
The Louisiana Supreme Court issued a post-storm ruling allowing non-Louisiana lawyers to offer pro bono indigent-defense representation under the oversight and supervision of a Louisiana-licensed lawyer.  It's like routine pro hac vice admission but without limiting it to a few cases.  That move has saved the day for a teetering criminal defense system in New Orleans.  Now a trial judge has ruled that 'supervision' means physical co-presence in court by the in-state mentor--for every hearing or court matter.  The story and news link here from a nice blog by one of those selfless volunteers.

This ruling could kill the efficacy of the wonderful volunteerism on which the system's very survival lately has depended.  The order is on appeal now, and I hope the understandable requirement of supervision is interpreted in a more realistic fashion.  If a particular attorney shows up and does not know what he or she is doing, there is nothing in the original ruling to prevent that judge from requiring more supervision of that attorney.  But a blanket prohibition on independent presence in court makes the volunteers, many of whom have years of defense experience, nearly redundant and surely would kill the incentives for such people to sacrifice and go to New Orleans.  Those volunteers should be treated as heroes--actually welcomed as liberators if you will--rather than disrespected in this way, in some kind of hyper-deference to the formal requirement of an in-state license. 

As someone who lived there for 17 years before Katrina, and will return, I have to say that I am saddened but not surprised by the insularity evidenced by such a ruling.  I know a Louisiana native who does not think you can find a good restaurant in San Francisco.  I have observed countless judges who think the way Louisiana does things (has always done things) is as natural as breathing while every other state is just crazy; millions of non-frenchmen, they think, can be wrong.  Outsiders not so steeped can be viewed with skepticism and seem to prod a disabling defensiveness. 

I don't think this perspective will ever change, and is not necessarily unique to Louisiana (other states are ridiculous about their in-state licensing rules in other ways).  But it should be put on hold a little longer to survive the crisis in the criminal courts until they are adequately funded and staffed.   

Road Trip: "Working in the Public Interest" Conference at UGA March 30-31 is Free and Loaded

[This is excerpted from information sent by UGA in Athens.  This conference is free to most registrants, and open to students/profs/practitioners.  Note that the link so far provides only 2006 information (and says it is "closed," but it is not), so watch it fresh for updated registration and hotel info for 2007. Athens housing may be free for students attending on a road trip.  Sounds like a great idea.  --Alan Childress]

The University Of Georgia School Of Law cordially invites you to attend the Second Annual "Working in the Public Interest: Challenging Poverty through Law " conference on March 30-31, 2007.

The conference commences on Friday, March 30 with our keynote speaker, Stephen B. Bright, President of the Southern Center for Human Rights.  On Saturday, March 31 we will have an entire day of panels and roundtable discussions with speakers drawn from all parts of the country.

        This year we will be offering CLE credits for a small registration fee.   We can also arrange free housing for student attendees who would like to stay with other students here in Athens. 

        Panel discussions include: 

"What is Public Interest Law and Why Do We Care?" (Plenary)
"Universal Health Care: Political Priority or Pipe Dream?"
"Sheltering the Poor: Solving the Affordable Housing Crisis Through Government and Community Initiatives"
"The Immigrant Narrative: Day to Day Struggles of Legal and Illegal Immigrants in America Through the Lens of State Social Services and Health Care Access, Labor Laws, and the Scope of Legal Aid"
"Juvenile Delinquency Prevention and Responses: What Works?"
"Felon Disenfranchisement: How States are Mandating Change and Restoring Voting Rights"

"Are Labor Unions Obsolete?" (Workers' Rights Panel)

        Roundtable topics include:

Public Defenders and District Attorneys

Governmental service and the public sector
Grassroots organizations and faith based charities
Pro bono work in the private sector
Financing a public interest career
Non-traditional law practice

Impact litigation and lobbying

        ....Registration will be available online in a few weeks, at our website:  www.law.uga.edu/wipi.

Tremblay on 'Critical Legal Ethics,' Reviewing Carle's Collection on Social Justice

Posted by Alan Childress

Paul Tremblay (Boston College--Law) has posted on SSRN--Law & Soc'y: Legal Prof. his review essay, "Critical Legal Ethics."  It will be published in the Georgetown Journal of Legal Ethics, vol. 20.  His abstract is: 

In this essay, Professor Tremblay reviews the book Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader, edited by Susan D. Carle and with a foreword by Robert W. Gordon, published by New York University Press in 2005.

The book is available from NYU Press here or Amazon here, and is edited by Susan Carle (American U.), including her own chapter on legal ethics and the NAACP.  From the book's NYU blurb:

Legal ethics should be far more than a set of rules on professional responsibility; they can serve as a means for changing power relations, empowering the disenfranchised, and advocating progressive social change. Lawyers' Ethics and the Pursuit of Social Justice broadens the discussion on legal ethics by first introducing the historical and theoretical background and then connecting it to real world issues while addressing lawyers' ethical obligations to work for social justice.

Elefant Replies to Blom on Cause Lawyering and Solos. Thunderdome Ensues.

Posted by Alan Childress

Here find MyShingle's Carolyn Elefant in pointed reply to my previous post on Brenda Bratton Blom's recent article on "cause lawyering" and the mobilization of solos and small firm lawyers.  A taste of Elefant's reply:

I have to admit that when I read pieces like Blom's, it's clear why I have no future in academia:  it's simply too divorced from reality.  For example, where does Blom get the idea that solos are scraping by on the edge, living at the mercy of markets by selling our services?

And:

We solos and small firms survive and thrive by focusing on what our clients want and educating them about other possibilities; not by subordinating their issues to the big picture or a matter that we personally find more compelling.

I am like the puppetmaster on this one:  I sent the link to Carolyn Elefant with unstated hopes she would read it and reply in the very manner she did.  I then emailed her a clarification ... I told her that if she formally entered academia and wrote [more] articles, her future would be fine:  there is no formal requirement that they be divorced from reality.  It's just that we get paid a hefty bonus whenever they are.

Because it appears that both Bratton and Elefant live in Maryland, there's real potential for a debate at Blom's University of Maryland or at the University of Baltimore on this and related issues. I call it "The Role of the Small Lawyer in the Big Picture." It could be moderated by Jonathan Stein, or he'd be a panelist too (he recently won blogging awards in 8 different categories [by naming himself]).  I'd buy a ticket, though fortunately we don't ever have to buy such tickets in academia -- likely as part of the divorce settlement, after Reality left us for those floozies and gigolos in B-School.  I'd even moderate it myself if I get to trade punches too; I certainly look the part of the small lawyer. 

The debate could even be promoted like a WWF Smackdown, with nicknames like BBB or Triple-B and Elefant so readily available, and the word "brawl" so alliterative to Blom [in Baltimore, no less] and rhyming with "smallball."  Long academic papers will be referred to only as "pieces."  Seriously, thank you MyShingle, for reading the linked paper and for your considered analysis (I just excerpted the more flame-throwing parts). 

A Nice Reply by Weil Associate on How Can You Represent Terrorists?

Posted by Alan Childress

Every blawg has taken up the clarion flugelhorn in reply to DOD's Cully Stimson who told U.S. businesses to pull their law work from law firms who do pro bono work for "terrorists."  To a blogger on the role of the legal profession in society, his comments come across as so asinine that one would have hoped they would have been mostly ignored and the employee relocated and de-powered for such an outlandish and incompetent misunderstanding of the basic and best norms of our (and his) profession.  But apparently no such governmental repudiation and correction is forthcoming. 

Either we believe in lawyers or we don't.  I do.  I do for corporations and their employees who want to be fully represented and assert whatever privilege is allowed.  I do for young associates and big law firms who give of their time for pro bono representation of all sorts of people, including Stimson's enemy-combatants.  I wish no one felt the need to reply to Stimson's comments.  Many have, and of course they all make more sense than the comments.

Here is a very good reply from one such associate, from the Weil Gotshal firm's office in DC, published on Salon.com.  (HT to Jane Hicks, who has represented corporations, football stars, and convicted murderers.)  And MyShingle's Carolyn Elefant notes here, "Stimson's remarks are offensive only if there's the potential that they might work."  She implores biglaw not to cut and run, even as she notes that sometimes it's biglaw making the same kind of suggestions about others' clients.

Ray Ward at Minor Wisdom here quotes the 6th amendment and says, "Some guy named Cully Stimson would apparently like to repeal that last infinitive phrase, if not the entire amendment. That wouldn't matter if Stimson were just some wingnut.  But he's not just a wingnut. He's a lawyer, which means he ought to be familiar with the Sixth Amendment."

Ultimately I guess I am used to the usual public question asked of criminal defense attorneys, "How can you represent guilty people?"  (The defense attorneys that I know say it's representing the innocent ones that makes them puke in panic.)  I am not used to the American government asking it.   And then asking for those who do to be punished into submission by their other clients.  And suggesting that selfless volunteers are secretly funded by terrorists.  How does he still have a position of power and responsibility in a system devoted to the rule of law?

As any decent anarchist would say, "First we do, let's kill all the lawyers."  In a democracy, I say, "First we do, let's not empower anarchists."