Eugene Volokh on troubling implications for speech of the American Bar Association’s new adoption of rules declaring it a professional responsibility violation for lawyers to express bias in various ways, including in the course of “law-related social activities.” More: ABA Journal, Ron Rotunda/WSJ, Stephen Bainbridge.
Speaking of infringements on what is now the scope of attorney-client privilege, an Oregon law professor has proposed to make environmental protection part of lawyers’ ethical duties. [Daily Climate; Tom Lininger, “Green Ethics for Lawyers,” Boston College Law Review, 2016; Scott Greenfield] Some backers hope the idea will encourage lawyers representing the fossil fuel industry, in particular, to disregard conventional attorney duties of loyalty to clients; indeed, it might someday serve as grounds for them to be disciplined if they refrain from betraying client interests in various situations.
- Do behavioral economists acknowledge policymakers’ own foibles? Not often it seems [Niclas Berggren via Bryan Caplan]
- China, not unlike our own attorney general-environmentalist alliance, is cracking down on the work of what it deems ideologically harmful nonprofits [ABA Journal]
- Barking mad: new ABA ethics proposal would deem it professional misconduct for lawyers to discriminate on various grounds, including “socioeconomic status,” in choosing partners, employees and experts [Eugene Volokh, Sara Randazzo/WSJ Law Blog]
- Virginia still has a law requiring annual safety inspection of your car, and it’s still a bad idea [Alex Tabarrok]
- Court in Canadian province of New Brunswick rules against honoring will that left estate to racist group [CBC]
- From the left, Paul Bland sees Monday’s Supreme Court decision in Spokeo v. Robins as a big loss for business defendants [Public Justice, earlier] Contra: Andrew Pincus, plus more from WLF.
A proposed change in the law school accreditation standards that would lift the ban on students receiving academic credit for paid externships has drawn a lot of comment—and much of the comment is in opposition to lifting the ban.
Under the current standards, law students are barred from receiving both credit and pay for an externship. But the governing council of the ABA Section of Legal Education and Admissions to the Bar has approved for notice and comment a proposal that would eliminate the ban.
Comments on the proposal are here; for a student-eye recounting of the possible advantages of the proposal, scroll (h/t Ilya Somin) to the fifth letter in the series, by Peter Donohue, editor in chief of the George Mason Civil Rights Law Journal.
It is somewhat surprising (in a good way) to find the ABA inviting such a shakeup of the way things are done in legal academia, and less surprising to find many faculty resisting.
Just as other licensed professionals typically have an incentive to resist competition from alternative providers — lawyers to resist the incursions of paralegals, physicians those of RNs and pharmacists, and so forth — so professional educators have an incentive to resist competition from on-the-job training. That helps explain why the organized providers of government-licensed education are so keen to draw and enforce boundaries in this area: nothing for which the student gets paid should count toward obligatory time spent in education. And yet some employers would bid significant sums for the work efforts of lawyers in training, and that compensation in turn could make a dent in the typically high cost of obtaining a law degree. “Any proposed changes will come back to the council for final consideration in March.”
- Scorecards on complication rates and outcomes may reveal little about who’s a bad doctor since best docs sometimes take hardest cases [Saurabh Jha, KevinMD] “Anatomy of error: a surgeon remembers his mistakes” [The New Yorker]
- When parents and doctors don’t agree, are allegations of “medical child abuse” levied too liberally? [Maxine Eichner, New York Times; Lenore Skenazy, see also “medical kidnapping” links]
- ABA’s Standing Committee on Medical Professional Liability derailed in bid for House of Delegates resolution endorsing unlimited punitive damages in product liability [Drug & Device Law first, second, third posts]
- Wisconsin repeals medical whistleblower law [Milwaukee Journal-Sentinel]
- “Politically Driven Unionization Threatens In-Home Care” [David Osborne, IBD]
- Ninth Circuit upholds Washington state regulations forcing family pharmacy to dispense morning-after pills [The Becket Fund]
- Pathologist who frequently diagnosed shaken baby syndrome loses Montana role [Missoulian]
At least in New York and California, if not every state. [John Steele, Legal Ethics Forum] Curiously uncontroversial, no? In 2012 we noted: “Among the trip-ups are that lawyers are sworn by oath to uphold the laws of the land; that federal law bars the granting of state professional licenses to illegals; that federal law makes it unlawful to offer employment to them; and that clients might find themselves in a pickle were their attorneys whisked away on zero notice to face deporation.” More: Scott Greenfield.
Lawyers wield an array of coercive powers against third parties, as well as looking after the entrusted interests of often unsophisticated parties and clients. And the goal of accommodating lawyers and aspiring lawyers who suffer from mental illness must be balanced against the “threat” their condition will sometimes pose to clients and the public — at least that’s what the president of the Florida Bar says. With language like that, it’s no surprise his bar appears to be on a collision course with the ADA (Americans with Disabilities Act) enforcement efforts of the U.S. Department of Justice. [ABA Journal]
More: Scott Greenfield wonders who’s looking out for clients’ interests.
Organized lawyerdom is gung-ho for stringent enforcement of UPL (unauthorized practice of law) laws — their own version of occupational licensure — but consumers fare less well when paralegals, automated forms providers, accountants and others are kept from offering competitive services [George Leef, Forbes] As I’ve argued before, part of the key to sorting out the UPL issue is to distinguish between lawyerly capacities which involve the power to wield compulsion or force against others — the capacity to initiate litigation being paramount among these — and less coercive capacities such as the performing of research and giving of client advice.
- Supreme Court agrees to hear case in which feds claim right to ignore deadlines for suit-filing because of Wartime Suspension of Limitations Act (WSLA), passed in 1942 [my new Cato post, earlier]
- As we’ve advised before, don’t run 10K races while your claim of low-speed-crash injury is pending [Philly.com]
- Incentivizing complaint-filing: State Bar of California pushes “urgency legislation” empowering it to collect $2500 per enforcement action from targets of its efforts against unauthorized practice of law; association of non-lawyer preparers of legal documents calls it “a cleverly designed effort by the Bar to seek additional revenue from non-members of the Bar.” [Dan Walters, Sacramento Bee via KafkaEsq]
- Feds get earful on Hawaiian tribalization plan [KHON, Indian Country Today, more, earlier]
- BP: “Legal feeding frenzy continues four years after the spill” [Melissa Landry, The Hayride]
- Danke schön! “Overlawyered ist übrigens ein vorzügliches Blog, das sehr oft sehr gute Postings hat zu den Irrungen und Wirrungen des US-amerikanischen Rechtssystems” [Lawblog.de comment]
- There’ll always be a Berkeley: California city requires medical marijuana dispensaries to set aside some product for free use by indigent and homeless [Reason, KCBS]