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APRL Members James Bolan and Sara Holden Publish Legal Ethics Book

APRL members Jim Bolan and Sara Holden have published the Massachusetts Legal Ethics and Malpractice 2017.

 

Navigate Massachusetts’ system of attorney regulation with this newest practice deskbook from the publishers of Law Journal Press, the American Lawyer and the National Law Journal. The book contains practical advice from the authors regarding Massachusetts Bar Discipline and Legal Malpractice.

This book is comprised of two main parts: Massachusetts Bar Discipline and Legal Malpractice.

Part One, Bar Discipline, details the investigative process and the prosecutorial process. Topics addressed include: Board of Overseers, Response to the Complaint, Diversion Program, Formal Charges, Possible Dispositions, Formal Proceedings, Discovery, Prosecuting the Petition, Review and Appeal and Proceedings Before Court. Also addressed are issues involving temporary suspension, disability inactive status, disbarment by consent, convictions, commissioners, costs and restitution, reinstatement and clearance letters.

Part Two addresses legal malpractice topics, including: Attorney-Client Relationship, Standard of Care and Proximate Cause, Damages, Expert Testimony, Other Claims (e.g., breach of contract, breach of fiduciary duty, negligent misrepresentation, fraud, interference with contractual relations), Defenses, and the Intersection Between Bar Discipline and Legal Malpractice.

Keep current with the law and rules concerning lawyer liability and discipline in Massachusetts, as they continue to develop and change, and as ethics committees constantly issue new opinions and guidelines.* The book contains helpful appendix material: Massachusetts Rules of Professional Conduct; Restatement of the Law Governing Lawyers – Selected Citations; Ex Parte Communications – List of Selected Recent Cases, Rules, and Ethics Opinions in Massachusetts.

APRL Member Thomas P. Sullivan Publishes Law Review Regarding Disciplining Prosecutors for Misconduct

In the Journal Of Criminal Law and Criminology, APRL member Thomas Sullivan, together with Maurice Possley, published their article The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform.

 

According to the abstract:

While most prosecutors adhere to the maxim that their primary task is to obtain just results, there are some who violate their ethical responsibilities in order to rack up convictions. This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with members of attorney disciplinary bodies who have not investigated widely publicized prosecutorial misconduct. This article summarizes the rules requiring all members of the bar to report unethical conduct. We focus particularly on lawyers who serve in prosecutors’ offices, defense lawyers, and trial and reviewing court judges and their lawyer clerks, each of whom has a personal, non-delegable responsibility to report their knowledge of ethical breaches to disciplinary authorities.

In addition, the article identifies reforms to the justice system designed to reduce prosecutorial abuses: (1) substituting for the Brady rule a verifiable open-file pretrial discovery requirement on prosecutors; (2) instead of invoking harmless error, requiring reversal of convictions if serious prosecutorial misconduct is proven; (3) identifying errant prosecutors by name in trial and appellate opinions; (4) providing prosecutors with qualified instead of complete immunity from civil damages for misconduct; and (5) authorizing the Department of Justice’s Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors. The article also proposes that attorney disciplinary bodies adopt changes designed to more effectively discover and sanction misbehaving prosecutors. Lawyer organizations and bar associations are urged to speak out when prosecutors deviate from appropriate conduct, and law schools are encouraged to include instruction on ethical rules peculiar to the criminal practice.

Thomas P. Sullivan and Maurice Possley, The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform, 105 J. Crim. L. & Criminology (2015).

 

APRL Files Amicus in SCOTUS

APRL filed an amicus in support of a petition for certiorari challenging New York Judiciary Law §470. The law prevents non-resident lawyers from practicing in New York if they do not maintain a physical office for the transaction of law business within the state. Currently, there are more than 134,000 non-resident New York lawyers.

Attorney Ekaterina Schoenefeld, who practices in New Jersey and is a member of the New York bar, challenged §470 as a violation of the Privileges and Immunities Clause under the U.S. Constitution. A judge of the United States District Court for the Northern District of New York found the law to be unconstitutional in a 2008 decision but a divided U.S. Court of Appeals for the Second Circuit subsequently overturned this decision in 2016, ruling that Schoenefeld had not proved that §470 was “enacted for a protectionist purpose.” Schoenefeld then petitioned the U.S. Supreme Court for review.

At stake in the Schoenefeld case is the ever-expanding population of lawyers who live and practice outside their states of admission, and whether States can burden these lawyers by requiring them to maintain a costly physical office that does not contribute to their practice or clients. Under the law as it now stands, New York admitted lawyers who reside within the state, and lawyers in many states who maintain multijurisdictional practices, are ethically permitted to operate “virtual law offices,” often from their homes, and can take advantage of modern advances in telecommunications and information sharing in order to efficiently and effectively serve their clients. But §470 creates the anomaly for New York admitted lawyers who are not resident in New York that they must maintain a physical office within the state.

APRL’s brief was drafted and filed by the law firm of Hinshaw & Culbertson attorneys Joel Bertocchi and Anthony Davis, together with Ron Minkoff and Tyler Maulsby of Frankfurt Kurnit Klein & Selz, P.C.,  Mr. Davis , Mr. Minkoff are both long time APRL members and past Presidents.  The organization thanks them and their firms for the excellent work.  The brief is available here: SCHOENEFELD APRL amicus FINAL

APRL Members Participate in ABA Advertising Forum Coming Up in Miami

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility is hosting a Forum in Miami to receive public comment on APRL’s proposed amendments to Model Rules of Professional Conduct 7.1 through 7.5 on Friday, March 3rd from 2:00 – 3:30 p.m. at the Hyatt Regency ( 3rd Floor Merrick II Room) during the ABA and APRL meetings in Miami Florida.  For more information about the Forum and links to the proposals, please check out THIS LINK.

APRL past presidents Mark Tuft and Lynda Shely will participate in the Forum along with representatives from each of the ABA Center for Professional Responsibility Standing Committees.

Legal Ethics Conference at California Western School of Law with APRL members Richard Zitrin and Bruce Green

APRL Members Richard Zitrin and Bruce Green will be on the faculty on a one-day legal ethics Colloquim at Cal Western in San Diego on February 11 along with a great group including Abbe Smith, Bruce Green, Liz Ryan Cole and several others. It’s designed for both profs and practitioners and for those like Richard who are hybrids. Should be terrific

Here is the announcement:

Please join us in San Diego for a one-day legal ethics colloquium at California Western School of Law on February 11, 2017. The conference will include a series of small workshops and discussions led by thought-leaders and experienced teachers in the field of legal ethics. Speakers will discuss the role and effect of heuristics and behavioral economics in legal ethics as well as new and innovative courses and teaching methods. The program is aimed at both professors of legal ethics as well as practitioners who train new lawyers or serve as ethics counsel. The conference will include an opening reception on Friday, February 10, 2017, from 5:00 to 6:30 p.m., and a closing reception on February 11, from 4:30 to 5:30 p.m.

Speakers include:

Abbe Smith (Georgetown); Bruce Green (Fordham); Catherine O’Grady (Arizona); Liz Ryan Cole (Vermont); Martin Böhmer (Buenos Aires); Richard Zitrin (Hastings); Tigran Eldred (NESL); Tom Barton (CWSL); Tim Casey (CWSL).

Conference registration is available at this link and an early rate is available until January 13, 2017. California Western School of Law has been approved by the State Bar of California as a provider of MCLE. Conference participants will earn 7.0 hours of MCLE credit in legal ethics. The conference registration page includes information about hotels and transportation.

APRL Launches New Website

Welcome to the new website

The Board and project lead Allison Martin Rhodes would like to thank everyone who gave their time and energy, opinions and suggestions to this project.  In particular, our committee members Lucian Pera and Kendra Basner and our ever fearless admin Stacy Turcott.

Important Information:

 

First: Miami meeting registration will be open on the new site.  REGISTER NOW, because of the migration we are a bit behind schedule.  The hotel block expires in the first week of January and hotel rooms in Miami Beach are expensive.  Do not wait.

The new website has a number of new features and opportunities for the organization.  It is modern and navigation is dramatically improved.

For the public side, it is fully set up to provide a platform for our members to promote themselves in the increasingly important search engine universe.  We will be encouraging you to submit news, events, links to your blogs, articles for publication.  The more we/you post, the better the google results will become.   We have also increased the visibility of the member search function and would like to watch the site grow as a place for potential clients to find qualified ethics professionals.  The site offers many resources to serve our members both in marketing their practice and sharing resources and information.

On the members only side there are some major improvements.  The site is fully searchable in a simple google search style.  You can search just meeting materials or just forum posts or, you can search the entire site to include both these resources as well as amicus, reports and articles that are posted.  The more content we contribute, the better the resource will be.  There is no more second log on or clunky archives.  This works like a simple, clean search engine of everything we have to offer.   The entire listserve archive (14 years!) and all meting materials have been migrated to the new site.

What you need to do: 

1) Your existing user name and password will work on the new site.  If you do not know it, there is a password reset function at the log in screen.  Your username is your email.

2) Register for the Miami meeting

3) Manage your Forum (listserve) setting:

Once you are logged in as a member, click the FORUM button.  It will take you to the web based forum page.  The first three lines are your subscription options.  They are as follows:

 

Subscribe to New Topic Notifications:   Click this option if you wish to receive only the first post on a subject.  You will be able to click a button on any new post if you wish to subscribe to responses on that post, in which case you will receive them in your in box.  If you do not click subscribe on a specific post, you will receive no further emails on that subject (ie: reply all is disabled!).  If you are a listserve drop out, please give this option a try for a while.

 

Subscribe to All Posts: Click this option if you want your Forum experience to mirror your current listserve experience of receiving everything.

 

Subscribe to Daily Digest: Click this option if you wish to receive one email a day with everything in your subscription.

 

You can change your subscription settings anytime at this same spot.

 

You can generate a forum post by sending an email to forums@notifications.aprl.net.  You can also use the forum like a blog, entirely web based for posting, reading and searching.

 

The web designers have created a detailed “user manual” for the Forum which is available here

We look forward to your ooos and ahhhs, comments and suggestions as we edit the site.  We are also looking for interesting current “APRL Members in the News” postings to freshen up the content, so please send along anything interesting you have in that regard

APRL Supports ABA Model 8.4(g)

APRL Board Votes to Support ABA Anti Discrimination Rule

At its August 2016 meeting, the APRL board met and heard commentary on the eve of the ABA vote.  The Board voted to add its support to the new anti-discrimination rule.  The text of the new rule, as revised, can be found HERE