LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL
"Should Counsel for a Non-Party Deponent Be a 'Potted Plant'?"
2014 N.Y.U. J. Legis. Pub. Pol'y Quorum 52
NYU School of Law, Public Law Research Paper No. 14-25
DAVID LEITER FERSTENDIG, New York Law School
OSCAR G. CHASE, New York University School of Law
It has long been the practice in New York that non-party deponents may be represented at depositions and that their counsel may object to questions counsel believes are improper. In 2010, however, the New York State Appellate Division, Fourth Department ruled in Thompson v. Mather that counsel for a non-party may not make objections during the deposition and, in effect, is a mere â€śpotted plantâ€? at the deposition. Under the Thompson holding counsel may not object even to protect a privilege or to strike a plainly improper question that would cause substantial prejudice if answered. Although only the Fourth Department has ruled in this manner, the case is binding on all lower courts throughout the state absent a contrary decision by another Appellate Division Department, by an overruling by the Court of Appeals, or by legislative correction. This article analyzes the practical considerations and ethical dilemmas implicated by this ruling. The article concludes that the ruling rests on an improper interpretation of the New York Civil Practice Law and Rules, flies in the face of established practice, is impractical, and raises serious ethical dilemmas for counsel representing a non-party at a deposition. The authors urge the Court of Appeals, which is set to decide this issue in the October, 2014 term, to reject the Fourth Department ruling and to hold that the important protections provided by counsel to party deponents are available to counsel for non-parties. Alternatively, the authors recommend that legislation be enacted to achieve that end.
"A Good Step in the Right Direction: Illinois Eliminates the Conflict Between Attorneys and Guardians"
38 J. of the Legal Profession 161 (2013)
ALBERTO BERNABE, The John Marshall Law School
Even though most organizations that set advocacy standards for attorneys participating in juvenile delinquency proceedings have emphasized that the duty of the lawyer for a juvenile is to advocate for the juvenileâ€™s legal rights rather than to support some other personâ€™s determination of the juvenileâ€™s best interests, there is significant evidence that there is confusion among attorneys and judges as to the proper role of attorneys who represent minors in delinquency proceedings. However, in delinquency proceedings, the duties of an attorney for a minor client are so fundamentally different than those of a guardian ad litem, that attempting to serve as an attorney and a guardian at the same time affects the effectiveness of the attorneyâ€™s role as an advocate for the minor, thus making it impossible for the attorney to provide the type of effective assistance of counsel that is guaranteed by the Constitution. Because juveniles facing delinquency proceedings have a Constitutional right to counsel and to effective assistance of counsel, remedying the problem is critical to improving the quality of juvenile justice. This short essay explains the problem and reviews the state of the law on the issue.
"Admission to Legal Practice, The Unauthorised Practice of Law and Legal Specialisation in Uganda"
Legal Ethics and Professionalism in Uganda, Forthcoming
D. BRIAN DENNISON, Uganda Christian University
This is a book chapter that introduces and discusses the duties owed by the legal advocate to the client in Uganda.
What does it take to become an advocate in Uganda? Who are the gatekeepers and watchdogs of legal practice in Uganda? What tasks can only be performed by an advocate? What is legal specialisation and what is its relevance in Uganda? This chapter addresses these questions. This chapter covers admission to practice, the unauthorised practice of law, the role of non-advocate staff in legal practice, and specialisation in legal practice. These issues make up a broader theme regarding the proper functions and introductions to the roles of an advocate within the context of efficient legal practice.
The first section of this chapter concerns admission to legal practice. This section includes brief historical treatment concerning access and admission to formal legal practice in Uganda. This section also outlines the current process for admission to the Roll of Advocates in Uganda and introduces the reader to the institutions involved in the qualification and certification process.
The second section addresses the unauthorised practice of law. We begin by establishing the legal parameters for functions that may only be performed by certified advocates. Next, we address law office tasks that non-advocates may perform. This section includes practical guidance on managing, supervising and utilising paralegals and nonadvocate staff.
This chapterâ€™s third section covers the emergent trend of legal specialisation. We address the global rise of legal specialisation and its implications and application within the Ugandan context.
The chapter will appear as part of textbook that will be published electronically and in hard copy by globethics.net
"E-Mail Netiquette for Lawyers"
Gerald Lebovits, E-Mail Netiquette for Lawyers, NYSBA Perspective 18 (Spring 2014)
GERALD LEBOVITS, Columbia University - Law School, Fordham University School of Law, New York University School of Law
This article discusses how lawyers can email efficiently and effectively. Topics include knowing when to email as opposed to communicating in person, how to end email confrontations, why readers should interpret emails generously, editing emails for concision and style, and subject lines, capitals, abbreviations, contractions, exclamation points, emoticons, formatting, attachments, projecting respect, and cautionary tips.
"Business Lawyers as Worldwide Moral Gatekeepers? Legal Ethics and Human Rights in Global Corporate Practice"
Georgetown Journal of Legal Ethics, Vol. 28, 2014, Forthcoming
DAVID NERSESSIAN, Boston University - School of Management
This article explores the intersection of international human rights law, corporate law, and the ethical regulation of business lawyers engaged in global business transactions. At first blush, the risks posed by human rights law may seem remote â€“ even fanciful â€“ to American corporate practitioners. But serious implications exist for business lawyers who facilitate commercial activities that subsequently wind up violating human rights.
Consider a corporate finance lawyer who represents a bank in a secured lending transaction where the lender finances a brutal foreign government that uses slave labor to mine â€śbloodâ€? diamonds. Or in-house counsel for an internet service provider faced with a demand from a foreign government â€“ pursuant to foreign law â€“ to identify online â€śdissidentsâ€? so that the government can make arrests and subject them to â€śenhancedâ€? interrogation. These kinds of scenarios at the intersection of human rights and business can create criminal and civil liability for lawyer and client alike, as well as rendering the lawyer subject to professional discipline.
The rising challenges for corporate lawyers facilitating the massive growth of international business cannot be solved by reference to one narrow discipline alone. Accordingly, this article adopts a multidisciplinary approach and draws on principles of legal ethics, international human rights law, and corporate law to provide a comprehensive analysis and solution for business lawyers engaging with a rapidly-changing global landscape.
International law provides criminal liability for a wide range of conduct by individuals and groups. It also recognizes a broad understanding of the means by which international crimes may be perpetrated. Legal work and business activity can be as equal a means of violating human rights as direct personal violence. Corporate legal work that substantially contributes to serious human rights violations itself may constitute an international crime. It also likely violates federal criminal statutes that incorporate international prohibitions into domestic law.
Many ethical duties are linked to â€ścrimesâ€? that trigger certain Model Rules incorporating these provisions by reference (eg, the ethical prohibition on lawyers helping clients break the law). The analysis becomes complex on the global scale because multiple sources of law apply simultaneously, raising serious questions about which rule predominates. The underlying conduct (eg, an ISPâ€™s lawyer identifying â€ścriminal dissidentsâ€?) could be perfectly legal (or even required) under foreign law, illegal under international law (eg, prohibitions on assisting or facilitating torture), and fall within a gray area in American law (eg, where federal law on torture is narrower than international law). In such cases, the lawyer cannot comply with one rule without breaching another.
The Model Rules normally resolve such â€śdouble deontologyâ€? conundrums by selecting ethical rules from a single jurisdiction to govern the lawyerâ€™s obligations â€“ usually where conduct occurs or has its predominant effect. But the transnational issues here are not easily reconciled with existing paradigms. International human rights law presents no â€śthis-or-thatâ€? choice in this context. Rather, the prohibition on serious human rights violations constrains domestic rules and creates universal duties that supersede all inconsistent domestic laws.
The direct applicability of human rights law to the attorney-client relationship has serious implications for ethical corporate legal practice. Whether or not criminal prosecution or civil liability follow, human rights violations in business dealings gives rise to myriad professional complications for corporate lawyers to consider and resolve. Of particular concern are the lawyerâ€™s duty not to assist in client crimes and questions of governance and the legitimate objectives of corporate legal representation.
Modern corporate practitioners must account for human rights in order to practice ethically and competently in the rapidly-expanding world of global business. That said, treating human rights simply as risks to manage creates its own risk â€“ that lawyers and the companies they represent will miss the forest for the trees, to the detriment of higher social aims to which both human rights law and the legal profession aspire. Corporate lawyers thus must walk a tight line that addresses criminal, civil, and ethical risk but also aligns compliance and decision making with the core ethical values underlying the legal profession itself.
"Is Confidentiality Really Forever -- Even If the Client Dies or Ceases to Exist?"
Litigation, Vol. 40, No. 3, pp. 47-51, Spring 2014
ANNE KLINEFELTER, University of North Carolina (UNC) at Chapel Hill - School of Law
MARC C. LAREDO, Laredo & Smith, LLP
The law firm of Lizzie Bordenâ€™s lead attorney continues to maintain her client files in a confidential manner. In contrast, the trove of notes kept by another attorney on the defense team were discovered by his grandson, who willed the client materials to the local Massachusetts historical society, making them generally accessible some 100 years after the murder trial.
Which is the right result? Does client confidentiality live forever? What if the client is an entity rather than an individual? Should there be some point in time -- 50 or 100 years -- when this right to confidentiality expires? Who will enforce the privilege once all the participants are dead? These questions have important implications for attorneys, law firms, and corporate entities. But they are also questions of importance to librarians whose libraries might be given papers that were protected by the attorney-client privilege, represented work product, or were the subject of an attorneyâ€™s ethical obligation to protect the confidentiality of client matters.
This short essay raises these questions and considers the legal, policy, and practical issues involved. Several approaches are outlined and briefly evaluated.
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Legal Ethics & Professional Responsibility eJournal
Vice Dean and Professor of Law, New York University School of Law
DAVID J. LUBAN
Georgetown University Law Center
RONALD DANIEL ROTUNDA
Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law
WILLIAM H. SIMON
Arthur Levitt Professor of Law, Columbia University - Law School, William W. and Gertrude H. Saunders Professor of Law, Stanford University - Stanford Law School
DAVID B. WILKINS
Harvard Law School - Program on the Legal Profession
CHARLES W. WOLFRAM
Charles Frank Reavis Sr. Professor Emeritus, Cornell Law School