The Yale Law Journal - Forum: The Pitfalls and False Promises of Nonlawyer Ownership of Law Firms

The Yale Law Journal - Forum: The Pitfalls and False Promises of 

Nonlawyer Ownership of Law Firms

Stephen P. Younger

ABSTRACT. Whether nonlawyers should have ownership roles in law firms has been and remains a hotly debated topic. The debate concerns potential reforms to Rule 5.4 of the American Bar Association’s Model Rules of Professional Conduct, which sets guidelines for maintaining the professional independence of lawyers, as well as the impact of those revisions on the legal profession. Although advocates for such reform argue that nonlawyers must be allowed ownership roles in law firms in order to foster innovation and increase access to legal services, many lawyers have raised significant concerns about the impact that nonlawyer ownership would have on the independence of lawyers. Lawyers have concerns about allowing nonlawyers—who have not sworn to uphold the ethical obligations that attorneys promise to uphold when becoming members of the bar—to have decision-making authority in the day-to-day practice of law. There is also no evidence that nonlawyer ownership actually improves access to justice for the needy. This Essay argues against rewriting Rule 5.4 to allow nonlawyer ownership of law firms. It concludes that nonlawyer ownership not only fails to solve the problems that advocates of reform promise it will address but in fact creates meaningful risks for the legal profession.

INTRODUCTION

Nonlawyer ownership of law firms (NLO) has been a hotly debated issue in the legal profession for years. The debate concerns potential reforms to Rule 5.4 of the American Bar Association’s (ABA) Model Rules of Professional Conduct, which sets guidelines for maintaining the professional independence of lawyers. One of Rule 5.4’s key provisions prohibits lawyers from forming business entities with nonlawyers in order to practice law and forbids entities owned or controlled by nonlawyers from having ownership stakes in law firms.1 Rule 5.4 also forbids lawyers from sharing fees with nonlawyers.2 Rule 5.4 has long served as an effective method of preventing ethical concerns about the professional independence of members of the bar, and its continued vitality was recently reaffirmed by the ABA’s House of Delegates.3

Nonetheless, some individuals and businesses—although not many lawyers—are seeking to revise Rule 5.4 to allow for increased possibilities for NLO. Advocates for such reform, such as Ralph Baxter,4 claim that reforming Rule 5.4 and similar restrictions on nonlawyer involvement in the practice of law is the only viable option for increasing access to justice and fostering innovation in the legal field.5 Baxter goes further and asserts that by refusing to reform Rule 5.4, lawyers have ignored their duty to solve the access-to-justice crisis in the United States, arguing that the profession has some undefined duty to ensure “legal service for all.”6 As discussed below, these assertions are unpersuasive, and NLO has not proven to be effective in addressing the access-to-justice crisis.

This Essay argues against rewriting Rule 5.4 to allow nonlawyer ownership of law firms. It concludes that NLO not only fails to solve the problems that advocates of reform promise it will address, but in fact creates meaningful risks for the legal profession. Part I provides a brief overview of Rule 5.4 and the current state of the NLO debate. Part II discusses the bar’s historical opposition to reforming Rule 5.4 and explains the concerns raised about nonlawyers increasing their involvement in the legal profession. Part III responds to arguments raised by Baxter and others in favor of easing Rule 5.4’s restrictions, including the failure of NLO to increase access to justice and the myth that NLO is required to foster innovation in the legal profession.

I. THE CURRENT STATE OF THE NLO DEBATE

A. Overview of Rule 5.4

The Model Rules of Professional Conduct are a set of model legal-ethics rules promulgated by the ABA that states typically follow, with modifications made to reflect local practice in each state.7 Model Rule 5.4 addresses the professional independence of lawyers.8 Rule 5.4, which has been adopted in some form by virtually every state, prohibits lawyers from forming a partnership with nonlawyers if any of the partnership’s activities consist of the practice of law and limits the circumstances under which a lawyer may form a professional corporation or association authorized to practice law for profit.9 Rule 5.4 also generally prohibits lawyers from sharing legal fees with nonlawyers.10

The purpose of Rule 5.4—which the Comments to the Rule expressly state—is to prevent nonlawyers from interfering with lawyers’ independent professional judgment and to uphold the obligation of lawyers to maintain their independent professional judgment.11 The restrictions imposed by the Rule aim to address the concern that if nonlawyers, who are not bound by the Rules of Professional Conduct, have a financial interest in a lawyer’s profits, they might prioritize profit over the duties the lawyer owes to clients and adversely influence a lawyer’s conduct.

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US bishops pioneered a self-serving invocation of 'religious liberty' | National Catholic Reporter

US bishops pioneered a self-serving invocation of 'religious liberty' | National Catholic Reporter

By Daniel Horan, OFM

Last week, I read a guest essay in The New York Times by Steven Paulikas, an Episcopal priest in Brooklyn, titled "Same-Sex Marriage Is a Religious Freedom." As a member of the Anglican Communion and an ordained minister in the Episcopal Church, Paulikas was able to say without reservation that his "wedding was an exercise of the freedom not only to be married under equal protection of the law but also to practice our religion."

Obviously, the Roman Catholic position is different, as it does not currently recognize the sacramental validity of same-sex marriages. And yet, since the Second Vatican Council, the Catholic Church does recognize the fundamental human right to religious freedom.

As the church's Declaration on Religious Freedom, Dignitatis Humanae, states, "The human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits."

While the Roman Catholic Church would not internally recognize the sacramental validity of same-sex marriage, this theological and disciplinary practice of restricting marriage ad intra exists in tension with the church's affirmation of the fundamental human right that exists for others to exercise their own religious traditions, including equal access to marriage within their churches and a pluralistic, constitutional society.

However, as Paulikas rightly notes about the current social and political climate in the United States, "a powerful political, legal and social movement is poised to prevail in its mission to relegate the marriages of L.G.B.T.Q. people to second-class status in name of 'religious freedom.' It seems its true goal is not to advance its advocates' religious freedom but to restrict ours."

Many Catholic leaders, politicians, academics and ordinary people alike are part of this anti-religious-liberty movement, oftentimes claiming without irony to do so in the name of "religious freedom."

From a Catholic perspective, it is also important to note that religious freedom is a relatively new part of the universal teaching of the church, something that can only be traced back to the 1962-65 Second Vatican Council (note to those inclined to invoke the teaching yet reject the council). Therefore, there is also a clear theological and pastoral need to clarify how it is being understood and deployed.

Since at least the social and political battles over the Affordable Care Act more than a decade ago, the U.S. bishops' conference has invoked "religious freedom" to justify its personal objection to certain policies such as medical contraceptive coverage through insurance for employees.

The church itself teaches that all people have "a right to religious freedom" and that, as both Dignitatis Humanae and the Pastoral Constitution on the Church in the Modern World, Gaudium et Spes, state, even Catholic Christians have recourse to their consciences. Rather than recognize this, the bishops have instead sought to impose their religious views on others.

Related: 'New Right' academics argue for biblical lawmaking at Steubenville conference

It seems that in recent years this sort of distorted and self-serving invocation of "religious freedom" has been used in more solipsistic and discriminatory ways. Such appears to have been the case with the agenda and lineup of speakers at a conference at Franciscan University of Steubenville, Ohio, earlier this month.

As my NCR colleague Brian Fraga reported, despite their different contexts and backgrounds (from university professors to media personalities to political candidates), the presenters shared a common sense of victimhood in decrying the current state of a pluralistic nation in which the right to religious freedom is enshrined in its constitution.

Fraga wrote: "Disaffected by secularization, social media censorship, the legal recognition of same-sex marriage and the widening societal acceptance of LGBTQ rights, the conference speakers described an America in crisis, where tyrannical forces in 'Big Tech,' media, academia, government and industry are cracking down on and isolating social conservatives and religious traditionalists in the United States."

In the post-Trump age, it should come as no surprise that many of those who share his political and ideological views are immune to the shame associated with rank hypocrisy. That is why I was not at all surprised to read that, as Fraga reported, "though the U.S. Constitution's First Amendment prohibits the establishment of an official state religion, several of the conference's Catholic speakers articulated their dissatisfaction with a religiously neutral American civil society."

The same people who work themselves up to a fever pitch about how their religious freedom is under attack are using the language of religious freedom to deny precisely this constitutional right to others.

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A Congressional Review Act for the Major Questions Doctrine by Christopher J. Walker :: SSRN

A Congressional Review Act for the Major Questions Doctrine by Christopher J. Walker :: SSRN

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track legislative process that bypasses the Senate filibuster and similar slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of such a joint resolution would amend the agency’s governing statute to authorize expressly the regulatory power the agency had claimed in the invalidated rule. In so doing, Congress would more easily have the opportunity to decide the major policy question itself—tempering the new doctrine’s asymmetric deregulatory effect and helping to restore Congress’s primary legislative role in the modern administrative state.

Keywords: administrative law, nondelegation doctrine, major questions doctrine, legislation

Suggested Citation:

Walker, Christopher J., A Congressional Review Act for the Major Questions Doctrine (September 26, 2022). Harvard Journal of Law and Public Policy, Vol. 45, Forthcoming 2022, Available at SSRN: https://ssrn.com/abstract=4230476 or http://dx.doi.org/10.2139/ssrn.4230476

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

Felix Frankfurter at his 1939 confirmation hearing

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment

by Brad Snyder

Norton, 979 pp., $45.00

Reviewed by Jed S. Rakoff (D.J, SDNY)


Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to President Donald Trump’s appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes.

What accounts for the Court’s being so often on the wrong side of progress and history? Democratic Justice, an impressive new biography of Felix Frankfurter by Brad Snyder, a professor at the Georgetown University Law Center, gives us a chance to consider that question. Though as a lawyer and academic he was a great liberal, as a justice Frankfurter increasingly facilitated the Court’s conservative tendencies. Snyder, who greatly admires him, contends that his principles, formed early in his adult life, remained consistent throughout his career. But a more detached observer may well view it as a foolish consistency.

'New Right' academics argue for biblical lawmaking at Steubenville conference | National Catholic Reporter

Franciscan University of Steubenville, Ohio is on a mission: to restore to the ascendancy traditional Catholicism as they understand it.  Their recent conference  featured a who's who of the American Catholic right wing, including GOP Senate candidate J.D. Vance.

One bright light is Adrian Vermeule.  He presented a paper defending the administrative sate erected in the first instance by Franklin D. Roosevelt.  In conversation with  Patrick J. Smith of the Catholic integralist online journal  The Josias  Vermeule struck a note uncommon on the American right: a defense of the "alphabet agencies" of the Roosevelt New Deal   This is not a surprise, as Vermeule co-authored Law and Leviathan.  With  Cass Sunstein, a key figure in the Obama and Biden administration's regulatory strategies, Vermeule mounted an ethical defense of the regulatory state.  He extended that view in his recent book Common Good Constitutionalism.

Vermeule continued that defense in Steubenville.  According to NCR reporter Brian Fraga :

Harvard Law Professor Adrian Vermeule, who has advocated for the kind of "common-good constitutionalism" that would empower the state to legislate public morality, also spoke at the conference. He focused his remarks on defending the authority of the federal bureaucracy, also called the "administrative state," to uphold the common good.

"There is no alternative to the administrative state. There is no dismantling of it. To dismantle it would be to dismantle the American constitutional order," said Vermeule, who also defended the prerogatives of federal agencies in a panel entitled, "The Wisdom of the New Deal Tradition."

 "The New Deal was a spectacular success," Vermeule said. P. J. Smith during the panel said that reexamining the New Deal in a favorable light had been "an unbroken thread" in the conference.

When Catholic conservatives speak of liberalism they have in mind John Stuart Mill who preached a philosophy of self-realization. Modern liberalism in their view is grounded in the cultivation of the individual, rather than a life of service, an ancient  vision. Theirs is an embrace of German-American political philosopher Leo Strauss who argued, according to Edmund Waldstein, O. Cist in The Josias "The premodern natural law doctrines taught the duties of man; if they paid any attention at all to his rights, they conceived of them as essentially derivative from his duties. "

Vermeule writes: "courts should defer to public determinations [of the public interest] so long as the public authority acts rationally and with a view to the legitimate public purposes of peace, justice, and abundance."

Vermeule's  critiques are directed at classical liberalism - particularly at  John Stuart Mill'  who posits "happiness" as a goal.  Mill wrote that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."  Taken to its logical conclusion, Vermeule says, this is a "grotesque parody of the common good of the community". 

It is hard to know just where a common good-oriented conservatism would lead - aside from, presumably, a narrow, traditional sexuality.  They abjure divorce, contraception, abortion, euthanasia, and homosexuality.  Yet they embrace integralism - the Catholic social ethic that society and the state should be ordered to the common good rather than to protect the right of the individual.  Their philosophy - implanted on the political right now - could accommodate monarchy and full blown state socialism, it appears to me.

- GWC   October 17, 2022

'New Right' academics argue for biblical lawmaking at Steubenville 

conference | National Catholic Reporter

STEUBENVILLE, OHIO — Franciscan University of Steubenville, the conservative Catholic university in eastern Ohio, hosted a two-day conference in October where leading "New Right" nationalists, "post-liberal" conservatives and Catholic integralists declared that America's "liberal consensus" has come to an end.

Several speakers articulated a vision of the United States where domestic manufacturing is not only revived and globalization reigned in, but where traditional Christian morality is restored to a central place in society and mainstream culture, and where leaders in government are comfortable using political power to enforce those religious values and punish "woke" progressives.

"Overt biblically grounded lawmaking, a concomitant biblically informed constitutional jurisprudence, and an approach to God in the public square that we might think of as an ecumenical integralism, represents our only hope for recovery at this late hour in our ailing, decadent republic," Josh Hammer, a Newsweek opinion editor, said during one panel discussion.

The conference, entitled "Restoring a Nation: The Common Good in the American Tradition" and held Oct 7-8, featured a who's who lineup of influential speakers in the national conservative movement, where grassroots momentum has been building on the right since former President Donald Trump in 2016 shook up the Republican establishment with his nationalistic rhetoric, hardline partisanship and bare-knuckled style of political combat against his liberal critics.

Disaffected by secularization, social media censorship, the legal recognition of same-sex marriage and the widening societal acceptance of LGBTQ rights, the conference speakers described an America in crisis, where tyrannical forces in "Big Tech," media, academia, government and industry are cracking down on and isolating social conservatives and religious traditionalists in the United States.

"Look around you. … Does the world look free?" said Sohrab Ahmari, a former New York Post op-ed editor and current fellow at Franciscan University's Veritas Center for Ethics in Public Life, who helped organize the conference. Ahmari spoke about "privatized coercion" in the market economy that he said subjugates American consumers and workers.

"If China treated workers the way Amazon does, American elites would be outraged," Ahmari said.

Rachel Bovard, senior director of policy at the Conservative Partnership Institute think tank, attacked the "woke industrial complex," which she described as the "axis of Big Tech, Chinese and corporate totalitarianism." She characterized the Pentagon — which in 2021 announced new guidelines to allow transgender people to enlist and serve openly — as "woke."

"If the last 30 years has taught us anything, it's that the left's fascist orgy is not somehow going to abate," Bovard said. "No one knows what lunacy is coming next, but we all know what's eventually coming: normalized pederasty, forced euthanasia, postnatal abortion, persecuting dissident faiths, disqualifying religious traditionalists and political conservatives from banking, property rights and public benefits."

To prevent that dystopian future, several conference speakers called for a restoration of Christian values, where abortion and gender reassignment surgeries are outlawed, traditional marriage and large families are supported by generous state subsidies and paid parental leave, where prayer is readmitted to public schools and commerce is banned on Sundays.

In Conversation: Honoring ideological divides on and off campus | by Conversations on Jesuit Higher Education | Aug, 2022 | Conversations on Jesuit Higher Education

In Conversation: Honoring ideological divides on and off campus | by Conversations on Jesuit Higher Education | Aug, 2022 |  

How can Jesuit institutions effectively respond to the profound ideological division that threatens U.S. society today? What does it mean to embrace a Jesuit, Catholic mission in such a way that it can help our campus communities and our nation to navigate the turbulence through which we are living?

In early May 2022, three high-profile legal scholars and leaders in Jesuit higher education sat down together to address these questions.

Lisa A. Kloppenberg, now a professor of law and special assistant to the vice president for university relations at Santa Clara University, was then serving as interim president at Santa Clara, a role which she assumed after many years as law dean, then as provost there. Vincent D. Rougeau was completing his first year as president of the College of the Holy Cross, after having served a decade as dean of Boston College Law School. Eduardo M. Peñalver of Seattle University was also completing his first year as president, a role to which he was appointed after serving as dean of Cornell University Law School.

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

Felix Frankfurter at his nomination hearing in 1939

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

by Jed S. Rakoff (U.S. District Judge, SDNY]

Felix Frankfurter was renowned as a liberal lawyer and advocate. Why did he turn out to be such a conservative Supreme Court justice?

Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to President Donald Trump’s appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes.

What accounts for the Court’s being so often on the wrong side of progress and history? Democratic Justice, an impressive new biography of Felix Frankfurter by Brad Snyder, a professor at the Georgetown University Law Center, gives us a chance to consider that question. Though as a lawyer and academic he was a great liberal, as a justice Frankfurter increasingly facilitated the Court’s conservative tendencies. Snyder, who greatly admires him, contends that his principles, formed early in his adult life, remained consistent throughout his career. But a more detached observer may well view it as a foolish consistency.

Controversies in Catholic education prompt collection on conscience | National Catholic Reporter

Controversies in Catholic education prompt collection on conscience | National Catholic Reporter

September 19, 2022

By Michael Sean Winters

In the years since the Second Vatican Council, and setting aside liturgy, which invites uniquely passionate debates, no issue has been as much debated and as foundational to a host of discussions, as that of conscience. From the council's achievement in promulgating Dignitatis Humanae, the Declaration on Religious Freedom, to the reception — and rejection — of Pope Paul VI's Humanae Vitae in 1968, through Pope John Paul II's 1993 encyclical on moral theology Veritatis Splendor, the U.S. church's struggle with the Barack Obama administration over the contraception mandate, to Pope Francis' 2016 apostolic exhortation Amoris Laetitia, conscience is both at the center of the issue and part of the foundation of the discussion.

Conscience is also the kind of issue about which the church's rich and nuanced teaching regrettably sometimes gives way to bumper sticker sloganeering. During the debate over the contraception mandate, it became clear to me that for many Americans, conscience was what John Henry Newman condemned as the false notion of conscience held in his day in his famous Letter to the Duke of Norfolk:

When men advocate the rights of conscience, they in no sense mean the rights of the Creator, nor the duty to Him, in thought and deed, of the creature; but the right of thinking, speaking, writing, and acting, according to their judgment or their humour, without any thought of God at all. They do not even pretend to go by any moral rule, but they demand, what they think is an Englishman's prerogative, for each to be his own master in all things, and to profess what he pleases, asking no one's leave, and accounting priest or preacher, speaker or writer, unutterably impertinent, who dares to say a word against his going to perdition, if he like it, in his own way.

Conscience, in Catholic theology, is the opposite of willfulness.  

A new book, Conscience and Catholic Education: Theology, Administration, and Teaching, edited by Kevin Baxter and David DeCosse (DeCosse is a contributor to NCR), brings together several essays that focus broadly on issues of conscience encountered in the educational field. The essays are uneven but important. In the United States, where Catholic education has such a large footprint and yet our theology of conscience is so easily abused, attending to the issues raised is critical.

The two strongest essays are both from lawyers. Sister of Charity of Nazareth Mary Angela Shaughnessy, who is a distinguished fellow at Loyola Marymount University in Los Angeles, examines which "legal or Constitutional concepts can help Catholic school administrators think respectfully through these difficult decisions" pertaining to non-Catholic faculty and students, as well as Catholic faculty and students who have made conscientious decisions at odds with church teaching.

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Comparative awards must be verifiable - New Jersey Supreme Court - Advertising Committee

COMMITTEE ON ATTORNEY ADVERTISING 

Appointed by the Supreme Court of New Jersey OPINION 48 

Supplementing Opinion 42: 

Rule of Professional Conduct 7.1(a)(3) – Honors, Awards, and Accolades that Compare Lawyers’ Services With Other Lawyers’ Services

 

The ethics rules governing advertising are intended to protect the public from statements that are false, deceptive, or misleading. Bates v. State Bar of Arizona, 433 U.S. 350, 383 (1977). Advertising that makes claims about the “quality of the legal services . . . are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.” Id. at 383-84. 

When lawyers state that they are included on a list called “Top Attorneys,” for example, the lawyers are making a statement of fact – they were included on the list – but they are also making a statement that supports an inference about the quality of their legal services, that their services are “top” or better than other lawyers’ services. 

Such statements can be misleading. See Peel v. Attorney Registration and Disciplinary Comm’n of Illinois, 496 U.S. 91, 101 (1990) (advertising a lawyer certification issued by an organization that does not inquire into the lawyer’s fitness can be misleading). 

Accordingly, Rule of Professional Conduct 7.1(a)(3) prohibits lawyers from making comparative statements. When referring to an accolade or honor that compares lawyers, the factual basis for the comparison must be verifiable. RPC 7.1(a)(3)(ii). Further, the conferrer of the award must have made appropriate “inquiry into the fitness of the lawyer.” Official Comment to Rule of Professional Conduct 7.1. See also In re Opinion 39, 197 N.J. 66, 76 (2008)

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Can we talk about racism? 3 books, 3 authors - Panel discussion with Linda McClain, Maureen O'Connell, and Tanya Hernandez

 Watch Video Can we talk about racism? September 28  VIMEO

Three books, three authors

Panel discussion with Linda McClain,, Maureen O'Connell , Tanya Hernandez

Linda McClain: Who is the Bigot? Learning from Conflicts over Marriage and Civil Rights

Maureen O'Connell  Undoing the Knots - Five Generations of American Catholic anti-Blackness

Tanya Hernandez   Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality

Sponsor: Institute on Religion, Law & Lawyers work, Fordham Law School

Moderator: George Conk, Senior Fellow, Stein Center for Law & Ethics

Supreme Court: Inside the law school chaos caused by SCOTUS decisions.

Supreme Court: Inside the law school chaos caused by SCOTUS decisions.// SLATE

By Mark Joseph Stern

hiara Bridges remembers the exact moment she lost faith in the Supreme Court. At first, at the start of Donald Trump’s presidency, Bridges—a professor who now teaches at UC–Berkeley School of Law—held out hope that the court might be “this great protector of individual civil liberties right when we desperately needed it to be.” Then came 2018. That June, the justices issued Trump v. Hawaii, which upheld the president’s entry ban for citizens of eight countries, six of them Muslim-majority. Suddenly, Bridges told me, she realized, “The court is not going to save us. It is going to let Trump do whatever he wants to do. And it’s going to help him get away with it.”

Four years later, the justices completely shattered whatever remaining optimism Bridges could muster about the court by overruling Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. When the decision came down on June 24, she got a migraine for the first time in a decade. The image of the court as a majestic guardian of liberty was, she concluded, “a complete lie.” And it wasn’t just about her own personal feelings, either: Now she had to teach her students about the work of an institution that made her sick to contemplate.

Bridges is not alone. At law schools across the country, thousands of professors of constitutional law are currently facing a court that, in their view, has let the mask of neutrality fall off completely. Six conservative justices are steering the court head-on into the most controversial debates of the day and consistently siding with the Republican Party. Increasingly, the conservative majority does not even bother to provide any reasoning for its decisions, exploiting the shadow docket to overhaul the law without a word of explanation. The crisis reached its zenith between September 2021 and June 2022, when the Supreme Court let Texas impose its vigilante abortion ban through the shadow docket, then abolished a 50-year-old right to bodily autonomy by overruling Roe v. Wade. Now law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?

Supreme Court Term Preview: Just Call the Justices "Republicans" and "Democrats"

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” - John Roberts, C.J. (2018)

Supreme Court Term Preview: Just Call the Justices "Republicans" and "Democrats"

By Jay Willis

For people who write about the Supreme Court, a well-established shorthand exists for describing who the justices are and how they do their jobs: “conservatives” and “liberals.” This language reinforces a core tenet of American legal culture: Judges—officers of the court who have taken an oath to administer justice faithfully and impartially—are not politicians. Whenever partisan affiliation does come up in a story, reporters are careful to attribute it not to judges, but to the elected officials who nominated and confirmed them.

Consider coverage of Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade earlier this year. “CONSERVATIVE JUSTICES SEIZED THE MOMENT AND DELIVERED THE OPINION THEY’D LONG PROMISED,” read a headline at CNN, which went on to distinguish between the justices in the majority and the “Republican-appointed conservatives who first voted for Roe and then upheld it.” Bloomberg described the Court’s decision as taking place “along ideological lines,” not to be confused with the reactions from elected officials, which came “along party lines.” In the New York Times, this dichotomy was on display in the very same sentence: The end of the right to abortion access vindicated “a decades-long Republican project of installing conservative justices prepared to reject the precedent.”

This convention is not only useless. It’s dishonest. This Court, controlled by a six-justice conservative supermajority, is the most partisan Court in living memory, and its life-tenured members are at the center of Republican political power in America. And for all the attention that occasional defections or scrambled lineups receive, the more important a case is to the GOP’s electoral prospects, the less likely it is that the final vote will include any surprises. 

Legal journalists have a powerful self-interest in maintaining the illusion of a distinction between erudite law and bareknuckled politics: If judges appointed by Republican elected officials simply do what Republican elected officials would have done in their shoes, the need for media outlets to hire specialized legal correspondents suddenly feels a lot less pressing. But after a term like last year’s, it is past time for commentators to abandon the constrained vocabulary of “conservatives” and “liberals,” or Republican and Democratic “appointees,” if they’re feeling spicy that day. They should feel free to refer to Supreme Court justices—to all judges, really—as “Republicans” and “Democrats,” too.

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The Development of Black Catholic Parishes in the Washington Area

The Development of Black Catholic Parishes in the Washington Area

The manifestations of racism and its results in the history of Holy Trinity parish have been and are continuing to be examined by Holy Trinity’s history committee. The following essay is an attempt at comparative history.

There are similarities and parallels in the histories of a number of parishes in the District of Columbia and the segment of Virginia which had been part of the district from 1790 to 1846. African American parishioners offended by the fact that they were not treated as equal members of the Body of Christ withdrew from a number of Washington area Catholic Churches and founded their own Catholic parishes where they could worship without being subjected to demeaning treatment.

The first of these stories of exclusion, exodus, and rebirth occurred in 1858. In that year, free Black Catholics repelled by the racism they experienced at St. Matthew’s, where they were forced to attend Mass in the basement, founded Martin de Porres, the first Black Catholic parish in the District of Columbia. According to St. Augustine’s parish history, “Faced with a society that was not yet willing to put off the last vestiges of slavery and a Church that, at best, tolerated the presence of Black people in its congregation, these men and women founded a Catholic school and chapel on 15th Street under the patronage of Blessed Martin de Porres.”

The parish was re-dedicated in 1876 to St. Augustine, and in 1908 the parish school, which had been forced to close in 1885, reopened under the direction of the Oblate Sisters of Providence, the first religious order of Black Catholic women. It was that order which Anne Marie Becraft, Holy Trinity’s pioneering promoter of education for Black children, joined in 1831 when she was 26. St. Augustine’s, today, proudly calls itself the mother church of Black Catholics in the United States.