EDITED BY:
Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Carrie E. Parker, Legal Editor
Matthew T. Stephens, Design & Publishing Editor
PUBLISHED BY: Joseph, Hollander & Craft LLC
PUBLICATION DATE: September 30, 2024
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 9
FEATURE ARTICLE: Institutional Censorship and Judicial Clerkship
In May of 2024, a group of federal judges sent a collective letter to the president of Columbia University and the dean of Columbia Law School. The letter announced that the judges would not prospectively hire graduates of the college and law school as judicial clerks because of the university’s failure to control apparent widespread antisemitism at the institution. They wrote:
As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in Columbia as an institution of higher education. Columbia has instead become an incubator of bigotry. As a result, Columbia has disqualified itself from educating the future leaders of our country…
This letter followed similar letters from other federal judges to other universities experiencing similar protests and accusations of antisemitic actions; but it was the letter to Columbia that created significant controversy.
Since Justice Oliver Wendell Holmes began to appoint Harvard graduates to serve as his “law secretaries,” the prestige of an appointment to serve as a judicial law clerk has grown. Given their extreme competitiveness, judicial clerkship appointments can be a significant boon to graduates’ careers. Those who successfully complete a judicial clerkship will often be recruited by prestigious law firms offering large starting bonuses and plum assignments. It is often a “golden ticket.”
With the increasing politicization of the judiciary and the bar, a clerkship with a judge of the “right” political inclination may provide an automatic professional network. Thus, when thirteen federal judges announce they will not choose clerks from a particular college or law school, that is news. Indeed, this boycott of Columbia students made national media.
Why such newspapers as the Washington Post were bothered by this boycott is clear. . . .
NEW AUTHORITY: Nebraska Ethics Opinion 24-03
Nebraska Ethics Opinion 24-03 provides a useful and timely reminder for lawyers everywhere about how electronically filing an itemized statement for attorney fees may impact the requirement of client confidentiality. The question presented was:
- Do Nebraska statutes, Supreme Court Rules, and/or local court rules that require court-appointed counsel to electronically file motions with the lawyer’s itemized billing statements (which include an itemization of the services provided to the indigent-client) for attorney compensation violate the Nebraska Rules of Professional Conduct, specifically §3-501.6, the rule of confidentiality?
- Does a lawyer violate the Nebraska Rules of Professional Conduct, specifically §3-501.6, the rule of confidentiality, if the lawyer electronically files itemized billing statements, but redacts or otherwise makes efforts to not include confidential information?
In its answer, the Nebraska Supreme Court begins with a general discussion of the importance of lawyers maintaining confidentiality of client information. The questions arose from the shift to electronic filing in Nebraska and a local court rule that required lawyers to file itemized billing statements with the court. The lawyers’ questions arose from a seeming conflict between this rule and Nebraska ethics rule 3-501.6 (similar to the Kansas and Missouri rules).
After a discussion of Nebraska case law and specific rules on the filing of fee statements in the representation of indigent clients by court appointed counsel, the opinion looks to the intersection of ethical rules and court orders:
… the Committee concludes that an attorney who electronically files an itemized billing statement concerning their representation of a court-appointed client does not, per se, violate the attorney’s ethical duty of confidentiality, as the duty of confidentiality does allow some disclosures of information related to representation, at least to a limited extent. Ultimately, the Uniform Court Rules which set forth the procedure for compensation for an appointed attorney create a narrow exception to the duty of confidentiality.
Having said this, the opinion makes it clear that this is a very narrow exception and requires significant thought by lawyers:
That being said, there are limits to that narrow exception, and it is critical that an attorney filing an itemized billing statement give heavy consideration to the duty of confidentiality and the client’s interests. Rule §3-501.6 “permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified” and “no greater than the lawyer reasonably believes necessary to accomplish the purpose” Neb. R. Prof. Cond. §3-501.6, cmt. 3. Therefore, it is incumbent on counsel to act competently and diligently in limiting the disclosure of information, with extreme sensitivity to the protection of the client’s interests.
To be sure, the nature and extent of an attorney’s task in determining what information is to be disclosed on an itemized billing statement in order to comply with the Rules, while also balancing the duty of confidentiality, will vary based on the facts of circumstances of each case…
The opinion goes farther and gives guidelines with commentary:
(1) Information provided on the itemized statement should be minimal and general in nature…
(2) Attorneys should employ competent methods and procedures to ensure itemized statements do not harm the client’s interests…
(3) Attorneys should take all protective measures necessary to ensure itemized statements do not harm the client’s interests…
(4) If an attorney receives an adverse ruling against their efforts to take protective steps, they should consider an appeal…
(5) Attorneys are encouraged to keep more detailed notes about client representation and billing…
Readers should consult the commentary to each of these five guidelines because it provides further useful advice.
The opinion concludes by taking an excellent and balanced approach to the questions and the issues they raise:
The Committee concludes that Nebraska statutes, Nebraska Supreme Court rules, and/or local court rules that require a court- appointed attorney to electronically file itemized billing statements to receive compensation do not violate an attorney’s ethical duty of confidentiality. However, attorneys are cautioned to provide competent representation to their clients when filing an itemized statement – always mindful of the dangers that itemized billing statements can present, and always acting in a manner to protect the client…If information must be revealed on an itemized statement that the attorney feels is necessary to comply with the rules on compensation, but ultimately could be harmful to the client, the attorney should take all necessary steps to protect the information from disclosure, including filing the itemized statement with redactions, filing a motion to seal, and appealing adverse rulings when denied.
ETHICS & MALPRACTICE RESEARCH TIP: New Articles from the Current Index to Legal Periodicals
1. Sam Libby, The Case for Proactive Bar Sanctions to Combat the Next Big Lie, 102 Tex. L. Rev. 1331 (2024).
This article raises important questions for all lawyers and judges.
2. Symposium, The New AI: The Legal and Ethical Implications of ChatGPT and Other Emerging Technologies. 92 Fordham L. Rev. 1797-1814 (2024).
This symposium presents very important discussions by leading scholars of the interactions between AI and legal ethics. This should not be missed!
A BLAST FROM THE PAST: Mental Cowardice
“A lie is always an act of mental cowardice, whereas intelligence is brave.”
—Harold Nicholson, Small Talk 122 (1937).
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 9
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