Recently in Ethics & Professional Regulation Category

Brian Lee More from This Author

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Legislation that would make it easier for judges turning 70 to be recertified for duty has built up momentum at the tail end of the New York lawmakers' session, which wraps up Thursday.

The measure calls for retired Court of Appeals judges and supreme court justices who otherwise meet statutory criteria for certification automatic, rather than discretionary.

Its prior version was vetoed by Gov. Kathy Hochul in January, upon Chief Administrative Judge Lawrence Marks' opposition "in the strongest possible terms."


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On Monday, the Supreme Court released an opinion that will cause profound suffering and perhaps even death as people are denied their constitutional rights. No, the court did not release the final version of the opinion in Dobbs v. Jackson Women's Health Organization, the case in which a leaked draft revealed that the court is poised to overrule Roe v. Wade and Planned Parenthood v. Casey, which recognize the right to end a pregnancy through an abortion. Instead, the decision today is a little-known habeas decision, Shinn v. Martinez Ramirez, involving two men in Arizona who have been condemned to death row. The consequences of Martinez Ramirez will also be disastrous for anyone relying on their constitutional right to effective counsel. And, like the Dobbs leak, today's decision also makes clear that the court's conservative supermajority is hellbent on smashing and grabbing precedent and constitutional rights no matter the consequences.

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Martinez Ramirez held that there is nothing a federal court can do when a defendant received ineffective assistance at their trial in violation of the Sixth Amendment and was then appointed an ineffective attorney during post-conviction proceedings who did not present evidence to support the claim that the defendant received ineffective assistance at trial. Specifically, the court held that the federal statute governing post-conviction review, the Antiterrorism and Effective Death Penalty Act, prohibits the federal court from considering evidence that the ineffective post-conviction lawyer failed to uncover. As it did in the case of Jones, this evidence may indicate that the defendant is innocent of the crime for which he was sentenced to death.

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Alito Calls Decision Expanding LGBTQ Rights 'Indefensible'--TPM

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Justice Samuel Alito is evidentially toting around an old grudge. 

At a Thursday night event at the Antonin Scalia Law School at George Mason University, he had harsh words for the two conservative justices who joined the majority in Bostock v. Clayton County

The 2020 opinion said that the Civil Rights Act of 1964, which prohibits sex-based discrimination, extends to gay and transgender workers. Justice Neil Gorsuch wrote the majority opinion, in which he was joined by the liberals and Chief Justice John Roberts. 

Speaking via a video feed Thursday, Alito called Gorsuch a "colleague and friend," but said that grounding the decision in the text of the 1964 law was "in my view indefensible," according to the Washington Post.

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BY DEBRA CASSENS WEISS

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A Houston family court judge has been publicly reprimanded for ordering two lawyers to be escorted to the jury box by a bailiff who shackled them to a chair while court proceedings continued.

Texas' State Commission on Judicial Conduct publicly reprimanded Judge Barbara Stalder of the 280th Family Protective Order Court in Texas in an April 20 document.


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The Association of Professional Responsibility Lawyers sent a letter to ABA President Reginald Turner on Monday that proposes a change to Model Rule 5.5 of the ABA Model Rules of Professional Conduct, which can be adopted by states as their own. Model Rule 5.5 governs unauthorized practice of law and multijurisdictional practice.

"Our proposal advocates that a lawyer admitted in any United States jurisdiction should be able to practice law and represent willing clients without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction's rules apply at a given moment in time," said the letter, written by Brian Faughnan, president of the Association of Professional Responsibility Lawyers.


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Brian Lee More from This Author

Litigation Reporter


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Lucian Chalfen, spokesman for New York's Unified Court System, said Rivera "continues in not meeting our qualification for employment and remains out of compliance with our vaccine mandate. As such she will be barred from entering her chambers or any court facility and must work from home."

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POUGHKEEPSIE - Attorneys throughout the state have organized a three-day protest after Governor Hochul removed modest rate increases for attorneys that participate in the "assigned counsel" program for people who cannot afford an attorney.  The attorneys will not be accepting new clients from any courts on April 18th, 19th, and 20th.

Governor Hochul removed the raises for 18-b attorneys from the state budget. The Senate and the Assembly had approved raising the rates in criminal cases from $75 an hour to $150 an hour for people charged with felonies and $120.00 an hour for misdemeanor cases. The family court rate was slated to go from $75 an hour to $150 an hour.  The current rate structure has been in place for more than a decade without any increases.

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Several of the country's most respected legal scholars say that Supreme Court Justice Clarence Thomas must immediately recuse himself from any cases relating to the 2020 election and its aftermath, now that it has been revealed that his wife, Virginia (Ginni) Thomas, colluded extensively with a top White House adviser about overturning Joe Biden's victory over then President Donald Trump. On March 24th, the Washington Post and CBS News revealed that they had obtained copies of twenty-nine text messages between Ginni Thomas and Mark Meadows, the Trump White House chief of staff, in which she militated relentlessly for invalidating the results of the Presidential election, which she described as an "obvious fraud." It was necessary, she told Meadows, to "release the Kraken and save us from the left taking America down." Ginni Thomas's texts to Meadows also refer to conversations that she'd had with "Jared"--possibly Trump's son-in-law Jared Kushner, who also served as a senior adviser to the Administration. ("Just forwarded to yr gmail an email I sent Jared this am.")

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Christine Charnosky

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Slate senior writer Mark Joseph Stern tweeted Thursday that U.S. Court of Appeals Senior Judge Laurence Silberman of the D.C. Circuit had sent an email to the listservs for all Article III judges in the U.S., which read: "The latest events at Yale Law School in which students attempted to shout down speakers participating in a panel discussion on free speech prompts me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges--and all federal judges are presumably committed to free speech--should carefully consider whether any student so identified should be disqualified for potential clerkships."

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Silberman was referring to protesters at a March 10 Federalist Society event that hosted Waggoner, who is general counsel of the Alliance Defending Freedom, an organization that the Southern Poverty Law Center has designated a hate group.

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250,000-plus lawyer disciplinary records leak • The Register

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Approximately 260,000 nonpublic disciplinary records stored on behalf of The State Bar of California were found to be exposed to the public and to have been republished on Judyrecords.com, a website that aggregates over 630 million public court records.

The sensitive records exposed include the case number, filing date, case type, case status, and respondent and complaining witness names.

Full case records were not disclosed, the State Bar said, and it's not yet clear how many attorney and witness names were revealed. The State Bar, which oversees the licensing of attorneys in the US state of California, also expressed concern that other government entities may be affected.

"We believe the issue is broader than the State Bar, because it appears that confidential records from other jurisdictions are appearing on the site as well," the State Bar said on its privacy breach update page.

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The Long Crusade of Clarence and Ginni Thomas - The New York Times

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The Supreme Court justice and his wife battled for years for a more conservative America. New reporting shows how far she was willing to go after Donald Trump's 2020 election loss.

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Professional Responsibility for the Animal Lawyer--Animal Legal Defense Fund

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The legal system poses many challenges and dilemmas for attorneys to navigate, and animal law issues can bring unique variations that are often not considered in usual discussions. Join us for a special CLE event, as Russ Mead leads attendees through a hypothetical scenario detailing what to do, what not to do, and what to look out for as an animal lawyer. The Model Code of Professional Responsibility will be used. Following the ethics presentation, Animal Legal Defense Fund Pro Bono Manager Taylor Waters will discuss how to get involved with our pro bono network, types of work that volunteer attorneys perform, and the benefits of membership. English closed caption subtitles will be available.

This webinar has been approved for 1 hour of ethics credit by the Oregon State Bar Association. A certificate of attendance will be provided via email after the webinar. Most states accept credits from other mandatory CLE states such as Oregon, but please check with your local bar association to confirm your state's reciprocity and reporting rules.

BY DEBRA CASSENS WEISS

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An 87-year-old town court justice in New York has resigned amid an ethics investigation into allegations that he encouraged a minor to have sex with his teenage son.

The New York State Commission on Judicial Conduct announced the resignation of George K. Wittlinger of the Ancram Town Court in Columbia County, New York, in a Feb. 8 news release. He has agreed never to seek judicial office in the future.

The New York PostLaw.comHudsonValley360.com and Syracuse.com coverage.

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BY LYLE MORAN

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The two women announced they were seeking a $150,000 investment in exchange for a 10% stake in the company they co-founded called HelloPrenup. The digital platform helps couples create prenuptial agreements by filling out in-depth questionnaires and comprehensive financial disclosures instead of having to go to a lawyer.

"Young couples are getting prenups more and more. But the traditional process of getting a prenup is expensive, time-consuming and a bit taboo," Jaffe said on the Shark Tank episode that aired Nov. 12. "But with HelloPrenup, the process is as easy as 1,2,3."

She also shared that a prenup on helloprenup.com costs $599, while the average cost when attorneys are involved is typically $5,000. Rodgers added that the addressable prenup market is valued at more than $500 million.

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A new blueprint for solo and small firm lawyers to best navigate times of crisis has been issued by the New York State Bar Association's Emergency Task Force for Solo and Small Firm Practitioners.

The task force's review of the impact of COVID-19 on solo and small-firm practitioners found that the pandemic exponentially increased day-to-day stresses on the operations of law firms, especially solo and small firm practices.

"No part of society escaped COVID's reach, including New York's legal system. Lasting changes will occur," said NYSBA President T. Andrew Brown, of Rochester (Brown Hutchinson). "This timely report expertly details how solo and small firm practitioners can navigate a crisis and continue to serve clients."

Created in March 2020 by Past President Hank Greenberg (Greenberg Traurig), the task force's mandate was to comprehensively examine the effects of the COVID-19 crisis on all aspects of solo and small firm practices, and to make meaningful recommendations as to how solo and small firm practitioners can maintain their practices in times of crisis.

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Read more...recommendations...




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For Gov. Andrew M. Cuomo, the setting and even the circumstances were familiar. He sat at a conference room table at his 39th-floor office in Midtown Manhattan, facing a former federal prosecutor with whom he had tangled before.

The videotaped interview lasted about 11 hours, and Mr. Cuomo faced a barrage of questions under oath about his treatment of women, posed by the two lead investigators hired by the state attorney general's office: Joon H. Kim, the former prosecutor, and Anne L. Clark, an employment lawyer.

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Read long, investigative article...


 

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A new federal lawsuit (click on link for complaint and exhibits) alleges former New York state trial judge Matthew Rosenbaum subjected his secretary to forced sex acts and other harassment between March 2005 and June 2009. Plaintiff Rebecca Klymn alleges the judge demanded she perform fellatio on him, saying it was part of her job to relieve his stress. According to the complaint, Rosenbaum also vaginally raped Klymn in her home in 2006.

As reported by Bloomberg Law, the complaint, filed in the Western District of New York, also contains other allegations of harassment:

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BY AMANDA ROBERT

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"In a complex regulatory system where cultivation, distribution, possession, sale and use of a product are tightly regulated, legal advice and guidance has immense value," the opinion said. "Without the aid of lawyers, the recreational marijuana regulatory system would, in our view, likely break down or grind to a halt."

For many of the same reasons the New York State Bar Association said lawyers may provide legal services to recreational marijuana businesses, it concluded that lawyers may accept an equity stake in a client's cannabis business in exchange for legal services, grow lawful quantities of marijuana for personal use at home and use cannabis products recreationally.

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Read full text of ethics opinion...

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States generally follow the American Bar Association's "model code of judicial conduct," which does not specifically mention social media norms. The association also offers nonbinding guidance from 2013 that says if judges use "proper care" when they opine online, they can avoid compromising their integrity. On the federal level, a planning resource for judicial employees' social media use was devised in 2010 and warned that "nothing is 'private' on the Internet."

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Read more, especially multiple case examples of judges who improperly used social media...



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