researching legal ethics advanced legal research class st johns 2012

1

Legal research II - Legal research II - AdvancedAdvanced

Researching Legal Researching Legal EthicsEthics

March 29, 2012March 29, 2012

Nathan Aaron RosenNathan Aaron Rosen

Legal research II - Legal research II - AdvancedAdvanced

Researching Legal Researching Legal EthicsEthics

March 29, 2012March 29, 2012

Nathan Aaron RosenNathan Aaron Rosen

2

WARNINGAll the opinions and statements

within this presentation are those of the speaker alone and do NOT in any way, shape, or form, reflect the opinion or position of any of his past or current employers.

3

Dedicated to Steven Krane

• Taught Legal Ethics class at Proskauer & at Columbia University Law School

• NY State Bar President

• Ethics expert• Lead 2009 NYS Ethics

changes as Chair NYBA Committee on Standards of Attorney Conduct

4

Today’s class

1. Basics of researching legal ethics

2. Hypo3. Working through hypo

5

Basics of researching legal ethics

• ABA BNA Manual• NY Statutes, DR & EC, Model

Rules, Ethics Opinions & Secondary Authority

• ABA Model Rules, Ethics Opinions & Secondary Authority

• Other states rules

6

Basics continued

•Special situations•News•Law firm memos & bloggers•Law Reviews & other

secondary authority

7

8

9

10

Lexis & WestlawCoverage of Ethics Material

Topic Lexis Westlaw

ABA Formal 1924 – date 1924 – date

NY State Bar 1986 – date 1977 - date

NY County Bar None 1979 – date

NY City Bar 1986 – date 1986 - date

State Ethics Opinion 7 states 21 states

Restatement of the Law – Law Governing Lawyers

Yes Yes

State cases (1999-2005) 2,654 1,529

State cases (2006-2010) 1,959 1,055

ABA Code & Model Rules Yes Yes

State codes of ethics Yes Yes

Law review articles with ethics citations (2000 to date)

2,560 8,972

ABA/BNA Lawyers Manual on Professional Conduct

Yes Yes

National Reporter on Legal Ethics & Professional Responsibility

Yes – exclusive to LexisNexis & covers 46 state ethics opinions but sometime lag times

No

11

Treatises

• Geoffrey Hazard, Jr. and William Hodes, The Law of Lawyering

• Raymond Wise, Legal Ethics• Charles Wolfram, Modern Legal

Ethics

12

Secondary authority• Restatement of the Law, The law

governing lawyers• Ray Simon, Simon’s New York Code of

Professional Responsibility Annotated.• Encyclopedia (CJS, AmJur or NY Jur)• Opinion reporters

– National Reporter on Legal Ethics & Professional Responsibility – Mary Daly, The New York Code of Professional Responsibility:

Opinions, Commentary and CaseLaw.– Eugene M. Eugene, Opinions of the Committee on Professional

Ethics

13

HypoYou are approached by an attorney who is

working with the General Counsel in the Legal Department (located in New York) of an international securities corporation. The attorney found out from their conversations with the GC that she is a very experienced nationally known attorney (now living in New Jersey), who has moved jobs located in three different states and has been licensed for more than a decade in California, District of Columbia and New Jersey but not in New York.

14

Hypo continued

The attorney asks you if there might be a problem and whether they should be concerned about attorney client privilege and whether they might need to advise the Board or GC regarding legal issues that involve the corporation, representing the corporation in negotiation with employees, ex-employees, counterparties, arbitrations, SEC & SRO regulatory filings and regulatory agencies, and in working with outside counsel.

15

Working through hypo

• Issues?• Jurisdiction?• Residency requirements for practice?• Any difference between corporation

and a law firm?• Can they wave in?• What is practicing law?

16

Steps

•ABA BNA Manual•NY DR & EC and newer Rules•NY Statutes•NY Ethics Opinions•NY Secondary Authority

17

NY DR & EC

18

22 NYCRR Part 1200

19

20

21

22

23

24

25

26

More steps

• ABA Model Code• ABA Ethics Opinions• ABA changes• Secondary authority• Securities arbitration special situation • Other states impact – California, DC

and New Jersey

27

28

29

30

31

New Jersey

32

33

34

Still more steps

•News – reputational risk issues

•Law firm memos and bloggers

•Law reviews & other secondary authority

35

36

37

38

39

40

41

42

43

New York Changes

44

45

46

47

48

49

Problem?

50

Web sites• New York University School of Law

www1.law.nyu.edu/library/legal_ethics_guide.pdf

• Duke University School of Law www.law.duke.edu/lib/researchguides/pdf/legalethics.pdf

• Georgetown Law Library www.ll.georgetown.edu/guides/legal_ethics.cfm

• Washington University Law School http://law.wustl.edu/library/index.asp?id=1338

• University of San Francisco Law www.usfca.edu/law_library/ethre.html

• Cornell University Law Libraryhttp://library.lawschool.cornell.edu/WhatWeDo/ResearchGuides/Legal-Ethics.cfm

• Mercer Law School Librarywww.law.mercer.edu/library/Research/Legal%20Ethic%20Final%20Web.htm

• Cleveland Law Library Associationwww.clelaw.lib.oh.us/Public/MISC/REGUIDES/guide4B.html

• American Bar Association Center for Professional Responsibility www.abanet.org/cpr/

• Association of Professional Responsibility Lawyerswww.aprl.net/

51

Bibliography of Articles

• Robert Ambrogi, Finding Ethics Via the World Wide Web, Law Technology Product News, December 1999, page 101 and Chicago Lawyer, December 1998, page 57.

• Dianna Botluk & James Botluk, A Web of Legal Ethics: Rules of Professional Conduct, LLRX, www.llrx.com/columns/ethics.htm

• Mary Daly, Researching Professional Responsibility Issues in PLI Ethics in Context, winter 2000, December 2006.

• Darby Dickerson, Ethics on the Web: An Annotated Bibliography of Legal Ethics Material on the Internet, Stetson Law Review, Vol. 28, Fall 1998, page 369 - http://justice.law.stetson.edu/lawrev/abstracts/PDF/28-2Dickers.pdf

• Nancy Garner, legal Ethics Resources, by the book or on the web, Intelligencer, Vol. 232, December 5, 2005, page S3.

• Deborah Rhode, Annotated Bibliography of Educational Materials on Legal Ethics, Law and Contemporary Problems, Vol. 58, Summer/Autumn 1995, page 361.

• Nathan Rosen, Researching Legal Ethics, New York State Bar Journal, Vol. 66, March/April 1994, page 40.

• Roy Simon, what Every New Attorney Must Know About Legal Ethics, in PLI’s MCLE Bridge the Gap Program Materials, October-December 1998, page 151.

52

Conclusions

•Similarities•Differences

53

Legal research II - Legal research II - AdvancedAdvanced

Researching Legal Researching Legal EthicsEthics

March 29, 2012March 29, 2012

Nathan Aaron RosenNathan Aaron Rosen

Legal research II - Legal research II - AdvancedAdvanced

Researching Legal Researching Legal EthicsEthics

March 29, 2012March 29, 2012

Nathan Aaron RosenNathan Aaron Rosen