Professor Bernabe's abnormal interview

The products liability blog Abnormal Use recently asked me to participate in their interview series. Here are my comments.

Supreme Court grants cert on Turner v. Price

The Supreme Court has granted cert on Turner v. Price which asks whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. For links to all the legal documents, including the lower court's opinion go to the SCOTUS blog.

Pro bono reporting requirement results in more pro bono & donations

Illinois lawyers are not required to provide pro bono services, but if they do provide them, they must report it on their annual registration forms. This reporting requirement was adopted in 2007 and since then Illinois attorneys have logged more than 6.5 million service hours and contributed $47.2 million, according to a recent report by the Attorney Registration and Disciplinary Commission. The report states that the total of pro bono legal service hours provided improved by 2.1% from 2008 to 2009 and the total amount of financial contributions increased by 1% to a total of $14.9 million. The report is available here.

Arizona State Bar seeks tougher sanctions for attorney who claimed to be channeling client's deceased wife's thoughts

A few days ago, I reported (here) on the case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. The Arizona Disciplinary Commission imposed a one year suspension on the attorney but the State Bar has filed a notice of its intention to ask the Supreme Court to review the case and disbar Johnson. Go here for the full story.

ISBA urges laywers to donate time or money to celebrate National Pro Bono Week

The Illinois State Bar Association is reporting that to celebrate National Pro Bono Celebration Week, which kicks off today, ISBA President Mark Hassakis is encouraging ISBA members to perform some pro bono work or to donate money to entities that provide legal services to those in need. The ISBA Standing Committee on Delivery of Legal Services has a website where you can learn more.

Supreme Court asked to consider whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding

On October 29, the Supreme Court will consider whether to grant certiorari on a case called Turner v. Price, which asks whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.

Thanks to the SCOTUS blog, here are links to the Certiorari-Stage Documents:

Opinion below (Supreme Court of South Carolina)
Petition for certiorari
Amicus brief of the National Association of Criminal Defense Lawyers, et al.
Amicus brief for the Center for Family Policy and Practice, et al.
Amicus brief of the Constitution Project
Brief of South Carolina Department of Social Services in opposition (forthcoming)
Brief of Rebecca Price in opposition
Petitioner's reply

Sad news: Jim Neal has passed away

My former students will likely remember Jim Neal, usually one of their favorite participants in the TV show Truth on Trial, an episode of the PBS series Ethics in America. Sadly, I must report that he passed away a few days ago. Here is a short article on his long successful career. Last year, he was recognized by the ABA Journal as one of the most influential lawyers over 70. See "Lions of the Trial Bar: 7 over 70." He was 81. For more go here, here, and here.


Thanks to the Legal Ethics Forum for the news.

Links to new rules in Tennessee

Here is a link to more information on the newly adopted rules in Tennessee. Go here for a summary of the key changes. Go here for a copy of the new rules.

Tennessee allows non-refundable fees

I have complained before that some jurisdictions have eliminated the advantage of allowing flat fees as an alternative to hourly fees (see here and here). Tennessee is not one of those jurisdictions.

The newly adopted Rules of Professional Conduct (R 1.5(f)) announced by the Tennessee Supreme Court allow for fees to be non-refundable as long as there is a written agreement signed by the client that explains the nature and the amount of the fee. The comment to the rule recognizes that two of the types of fees that can be non-refundable are classic retainers and flat fees. All fees, whether refundable or not, of course, must also meet the requirement of reasonableness.

Paragraph 4a of the comment to Rule 1.5 explains: "A nonrefundable fee is one that is paid in advance and earned by the lawyer when paid. Nonrefundable fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular nonrefundable fee is reasonable, or whether it is reasonable to charge a nonrefundable fee at all, a lawyer must consider the factors that are relevant to the circumstances. Recognized examples of appropriate nonrefundable fees include a nonrefundable retainer paid to compensate the lawyer for being available to represent the client in one or more matters or where the client agrees to pay to the lawyer at the outset of the representation a reasonable fixed fee for the representation. Such fees are earned fees so long as the lawyer remains available to provide the services called for by the retainer or for which the fixed fee was charged. RPC 1.5(f) requires a writing signed by the client to make certain that lawyers take special care to assure that clients understand the implications of agreeing to pay a nonrefundable fee."

For more on the newly adopted rules in Tennessee, go here. Go here for a copy of the new rules.

Tennessee does not adopt ABA Model Rules banning sexual relations with clients and allowing screening for lawyers who move to a new firm

About a month ago, the Tennessee Supreme Court announced its latest revisions to the Rules of Professional Conduct, which will take effect January 1, 2011. With these new rules, Tennessee joins the majority of jurisdictions in adopting most of the recent changes to the ABA Model Rules.

The rules, however, depart from the ABA Model Rules in at least two important ways. First, the Tennessee Supreme Court has rejected the adoption of the Model Rule that regulates sexual relations with clients. Instead, it has adopted three comments to Rule 1.7 on conflicts of interest that explain why sexual relations with clients is a bad idea, including the fact that the intimate relationship can exploit the client, impair the lawyer's judgment and endanger the attorney-client relationship. (You may remember that I recently noted that Texas is currently debating whether to ban sexual relations with clients -- more on that here.

Second, the new rules in Tennessee have retained its approach to conflicts of interest in cases where a new attorney joins a firm. Tennessee's rule does not recognize screening if the disqualified lawyer was substantially involved in the representation of the former client, the lawyer’s representation of the former client was in connection with an adjudicative proceeding that is directly adverse to the interests of a current client of the firm and the proceeding between the firm’s current client and the lawyer’s former client is still pending at the time the lawyer changes firms.

UPDATE (10-25-10) Here is a link to more information on the newly adopted rules in Tennessee. Go here for a summary of the key changes. Go here for a copy of the new rules.