Legal Ethics in the News - NYC Bar Association

Explaining the Conflict Issues and the Special Counsel Rules As They Apply in the Justice Department's Investigation of Donald Trump. Stephen Gillers is the Elihu Root Professor of Law Emeritus and Barbara Gillers is an Adjunct Professor of Law, both at New York University School of Law.

Alex Jones's law firm reportedly sent opposing counsel years of Jones's text messages and they were used to cross-examine him. Could the firm have mitigated the harm through what has come to be known as claw back? Are Jones's lawyers now exposed to discipline or damages? Famed appellate lawyer Paul Clement left Kirkland when the firm decided to stop advocating for Second Amendment rights. Clement had just one a big Second Amendment case in the Supreme Court. On the flip side, lawyers are sometimes shamed because of the clients they do represent. Who's right here? No one did anything unethical. But can lawyers be criticized for the clients they accept or reject? Stephen Gillers is the Elihu Root Professor of Law and Barbara Gillers is an Adjunct Professor of Law, both at New York University School of Law.

About 100 prosecutors nationwide have said they will not prosecute abortion cases. Yet their client is the state and if the state has made abortion a crime, can a local prosecutor ethically refuse to enforce the law? Also, the question has been asked whether, if indicted, Trump could rely on the advice of counsel that his conduct was legal, and thereby create a reasonable doubt about his criminal intent. What is the advice of counsel defense and could it work here? Stephen Gillers is the Elihu Root Professor of Law and Barbara Gillers is an Adjunct Professor of Law, both at New York University School of Law. See show notes and references at https://www.nycbar.org/media-listing/media/detail/can-a-prosecutor-refuse-all-abortion-cases-if-indicted-can-trump-rely-on-the-advice-of-counsel

In June, the New York judiciary adopted one of the most far-reaching disciplinary rules in the nation prohibiting discrimination and harassment, including sexual harassment, in the practice of law. But the journey to that adoption has gone on for nearly 30 years and has divided courts and bar groups nationwide. The Third Circuit is expected to decide a test case on the constitutionality of Pennsylvania's version of the rule later this year. See show notes at https://www.nycbar.org/media-listing/media/detail/new-yorks-new-disciplinary-rule-against-harassment-and-discrimination-in-law-practice

The recent trial of Michael Sussmann for lying to the FBI about his motives for giving it information that purported to show a link between a Russian bank and Trump interests raises two questions in the world of legal ethics and federal criminal law. The first asks when if ever considerations other than to convict can be a valid basis to indict. The second explores the meaning of truth and falsity in the professional conduct rules and in the statute used to prosecute Sussmann. Stephen Gillers is the Elihu Root Professor of Law and Barbara Gillers is an Adjunct Professor of Law, both at New York University School of Law.

Clients sometimes need services related to their legal needs but which are not legal services and which nonlawyers may also provide. Lawyers may see this situation as offering an opportunity for them to offer those services including through an entity separate from their law practice. Separately, this podcast reports on further developments facilitating what has come to be known as the practice of law in the Metaverse. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law. See this episode's references at https://www.nycbar.org/media-listing/media/detail/what-rules-govern-a-law-firms-ancillary-business-law-practice-in-the-metaverse-new-developments

The Code of Conduct for U.S. Judges and the federal law governing disqualification of judges and justices have been very much in the news lately, in part (but not only) because of the activism of Virginia Thomas, wife of Justice Clarence Thomas. This podcast explains both the code and the federal law, why it is that Supreme Court Justices alone among judges in the U.S. are not governed by an ethics code, and some proposed legislative solutions. Stephen Gillers is the Elihu Root Professor of Law and Barbara Gillers is an Adjunct Professor of Law, both at New York University School of Law.

The confirmation hearings on Judge Ketanji Brown Jackson's nomination to the Supreme Court are likely to include questions about whether, if confirmed, she would have to recuse herself from the Harvard affirmative action case now before the Court because of her six year membership on the Harvard Board of Overseers. Questions may also arise about her various recusal decisions while on the District Court. A federal judge in California will decide imminently if the January 6 Committee can discover emails of John Eastman, who was instrumental in the effort to prevent President Biden's inauguration. If the court finds for the Committee on the crime fraud exception to the attorney client privilege, its ruling can bring added pressure on the Department of Justice to indict Trump and others. Stephen Gillers is the Elihu Root Professor of Law and Barbara Gillers is an Adjunct Professor of Law, both at New York University School of Law.

Lawyers are licensed and regulated by states. In a sense, they are lawyers only when they stay home. They risk discipline and loss of fees if they work where they are not admitted. But the Internet does not recognize borders. It enables lawyers to advise clients anywhere from anywhere. Does it make sense to say that a New York lawyer can advise a Tennessee business owner if both are in the lawyer's New York office but not if the lawyer is physically or virtually in Tennessee? We have a national legal economy and the technology to serve it, but an increasingly incoherent system to regulate it. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

The House Select Committee has subpoenaed four lawyers, including Rudolph Giuliani. They may claim attorney-client privilege. This presents an opportunity to review the substantive and procedural law governing the privilege and its exceptions and to explain the difference between privilege and a lawyer's confidentiality duty. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

Stephen Gillers and Barbara S. Gillers give an update on Civil Rights Corps v. Pestana, pending in the Southern District of New York. The case (previously discussed in podcast #9) raises issues not only of the apparent lack of discipline for prosecutorial misconduct, but also government transparency and the First Amendment. Then they discuss when and how lawyers can post on crowdfunding sites to raise money for their client's legal fees. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

Stephen Gillers and Barbara S. Gillers discuss the apparent failure of disciplinary committees in New York and elsewhere to discipline prosecutors even after judges have criticized them. They then discuss whether Judge Alison Nathan of the Southern District of New York should be recused from presiding over the Ghislaine Maxwell trial because Senator Chuck Schumer has announced that he is recommending her appointment to the Second Circuit. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

Stephen Gillers and Barbara Gillers discuss three lawyers who have been in the news for alleged conduct in connection with the presidential contests of 2016 or 2020.

Stephen Gillers and Barbara Gillers analyze what lawyers can and cannot ethically do at trial to interfere with the search for truth. They then discuss the wisdom of the rule that requires a judge's recusal if he or she and certain family members own even a single share of stock in a party. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law. Join Professor Stephen Gillers for an October 17 Ethics CLE - see https://www.nycbar.org/cle

Stephen Gillers and Barbara Gillers discuss how nonlawyers can profit from law work. They also untangle Judge Nathan's gag order and the role of media in the upcoming trial of Ghislaine Maxwell. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

Stephen Gillers and Barbara Gillers discuss privilege Issues that may arise in the Upcoming Trial of Theranos Founder Elizabeth Holmes. They then review lessons learned from the recent reversal of a $37 million jury verdict because of the plaintiff's lawyers improper summation. They also follow up briefly on the Florida Supreme Court CLE ruling they previously covered. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

Stephen Gillers and Barbara Gillers discuss the recent decision by the New York State Supreme Court's Appellate Division, First Department, to suspend Rudolph Giuliani's law license on an interim basis pending the outcome of disciplinary proceedings against him. They then discuss 10 reasons lawyers get into trouble. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

Stephen Gillers and Barbara Gillers discuss a Florida Supreme Court ruling that no Florida lawyer could get CLE credit if the CLE sponsor "uses quotas based on race, ethnicity, gender, religion, national origin, disability or sexual orientation in the selection of course faculty or participants." They then discuss the obligation of prosecutors to reveal exculpatory information under Brady v. Maryland and rule 3.8. Last, they explain conflict rules for former government lawyers.

Stephen Gillers and Barbara S. Gillers discuss Litigation Financing, also known as Litigation Funding, an umbrella term to describe situations in which a person or organization invests in the claim of another person or organization. They then discuss Rule 1.9(a), a conflict rule that describes duties to former clients. Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law.

Stephen Gillers and Barbara S. Gillers discuss rules governing the practice of law from a jurisdiction in which a lawyer is not admitted, an issue that's been discussed since before the pandemic but which is especially timely now. They then turn to a question the New York courts are now considering: Should New York have an ethics rule forbidding discrimination and harassment in law practice? And if so, what should it say? Stephen is the Elihu Root Professor of Law and Barbara is an Adjunct Professor of Law, both at New York University School of Law. Find a list of resources at https://www.nycbar.org/media-listing/media/detail/remote-practice-and-harassment-and-discrimination-in-law-practice