
“Appellate Standards: Inspiring Better Lawyering” —
- “Cynthia Feathers and Tammy Feman address five areas—client communications, conflicts of interests, issues and risks, appellate briefs, and oral arguments—in which the New York State Office of Indigent Legal Services Revised Appellate Standards and Best Practices can help Family Court counsel bring their appellate practice to the next level.”
- “Appellate Standard 6 prioritizes the need for assigned appellate counsel to ensure that no conflict of interest exists and to move to be relieved when there is a possibility of a conflict. The Standard speaks about the need for offices to have a system in place to properly check conflicts (see Rule 1.10 [3] of the Rules of Prof. Conduct [‘A law firm shall *** maintain a system by which proposed engagements are checked against current and previous engagements…’]).”
- “However, even with an appropriate system in place, sometimes conflicts are not immediately discernible, especially in Family Court appeals. For example, in a mixed provider office, appellate counsel might first realize that a conflict exists upon reading the trial transcripts months after assignment on appeal.”
- “If the conflict involves a possible claim of ineffective assistance resulting from an error made by trial counsel from appellate counsel’s own office, rather than navigating a sticky situation as to whether appellate counsel may keep the case, making a motion to be relieved and for the assignment of new appellate counsel may be the safer course, Standard 6 observes.”
- “The presence of possible conflicts may be unclear in other situations as well. An actual conflict exists where an attorney has ‘divided and incompatible loyalties within the same matter necessarily preclusive of single-minded advocacy,’ whereas a potential conflict is one that may never be realized (People v Cortez, 22 NY3d 1061, 1068 [2014]). A conflict is often difficult to discern in a mixed provider office that previously handled a criminal or juvenile case involving one of the parties.”
- “If information from the prior proceeding is unknown to the appellate attorney, and the conflict is not immediately clear from the record, it might be appropriate for appellate counsel to keep the case. Similarly, where an attorney represented one sibling as an attorney for the child in a prior proceeding and represents multiple siblings on appeal, if the best interests of all the children are the same, appellate counsel is not necessarily conflicted.”
- “However, even in these uncertain circumstances, the client must receive conflict-free appellate representation. The conflict Standard suggests that the better approach in such situations is the safer route.”
- “When in doubt, to protect the client, file a motion to be relieved as assigned appellate counsel and for the assignment of new appellate counsel. The Standards are an excellent starting point in navigating these thorny conflict situations.”
“Does the prosecutor have an obligation to report defense counsel’s conflict of interest?” —
- “An AZ criminal defense counsel had a conflict of interest because he represented one of the defendants and, apparently unbeknownst to the defendants, also represented a government witness.”
- “The defendants moved to disqualify the prosecutor on the grounds that he knew about the conflict but didn’t insist on defense counsel’s withdrawal and also that he helped conceal the conflict from the court.”
- “The Court agreed with a Magistrate Report that the prosecutor violated various ‘ethical’ duties, but held that he didn’t have a ‘legal’ duty to report defense counsel’s conflict. The Court also found that the defendants had “blown [the issue] out of proportion” even though there was no prejudice. Motion to disqualify denied.”
- Read the decision: here.
And for those tracking the continued developments relating to recent Executive actions:
“Law firms refuse to represent Trump opponents in the wake of his attacks” —
- “The president issued a new order Tuesday [3/25] sanctioning yet another law firm, Jenner & Block. The result overall has been called an extraordinary threat to the constitutional rights of due process and legal representation, as well as a far weaker effort to challenge Trump’s actions in court than during his first term.”
- “President Donald Trump’s crackdown on lawyers is having a chilling effect on his opponents’ ability to defend themselves or challenge his actions in court, according to people who say they are struggling to find legal representation as a result of his challenges.”
- “Biden-era officials said they’re having trouble finding lawyers willing to defend them. The volunteers and small nonprofits forming the ground troops of the legal resistance to Trump administration actions say that the well-resourced law firms that once would have backed them are now steering clear. The result is an extraordinary threat to the fundamental constitutional rights of due process and legal representation, they said — and a far weaker effort to challenge Trump’s actions in court than during his first term.”
- “Legal scholars say no previous U.S. administration has taken such concerted action against the legal establishment, with Trump’s predecessors in both parties typically respecting the constitutionally enshrined tenet that everyone deserves effective representation in court and that lawyers cannot be targeted simply for the cases and clients they take on.”
- “In a statement, Jenner & Block noted the similarity to an order that ‘has already been declared unconstitutional by a federal court’ and that they ‘will pursue all appropriate remedies.'”
“Trump on Friday ordered Attorney General Pam Bondi to expand the campaign beyond individual law firms by sanctioning lawyers who ‘engage in frivolous, unreasonable, and vexatious litigation’ against his administration.”
- “Legal scholars say there is little precedent in modern U.S. history for Trump’s actions. But the president is following a playbook from other countries whose leaders have sought to undermine democratic systems and the rule of law, including Russia, Turkey and Hungary. Leaders in those countries have similarly attacked lawyers with the effect of hollowing out a pillar of justice systems to expand their power without violating existing laws. They have successfully used the strategy to blast away their political opposition and any effort to counter their actions through courts.”
- “‘It’s scary,’ said a former official in the administration of Joe Biden who has been pulled into Trump-era litigation and needed a lawyer as a result. The former official had lined up a pro bono lawyer from a major law firm that, the day after an executive order this month against the heavyweight law firm Perkins Coie, said that it had discovered a conflict of interest and dropped the person as a client.”
- “Five other firms said they had conflicts, the former official said, including one where ‘the partner called me livid, furious, saying that he’s not sure how much longer he’s going to stay there,’ the former official said, ‘because the leadership didn’t want to take the risk.'”
- “The person spoke on the condition of anonymity to avoid further difficulties obtaining a lawyer.”
- “‘I don’t know how many people are going to end up having to pay a significant amount of money out of pocket to defend themselves for faithfully and ethically executing their public service jobs,’ the person said. ‘It’s really a wild situation to be in.'”
- “‘You need the legitimacy of law on your side at some level,’ said Scott Cummings, a law professor at the UCLA School of Law who has studied challenges to the legal establishment. ‘This is the autocratic legal idea of claiming a democratic mandate to attack the rule of law by using law to really erode institutional pillars that are supposed to check executive power.'”
- “Trump’s actions toward lawyers, Cummings said, have been ‘about disabling effective representation of anyone that Trump doesn’t like, and that is the beginning of the end of the adversarial system,’ in which both sides of a legal case have equal access to present their views in front of a judge.”
Former GC at Airbnb and former Justice Department prosecutor writes: “GCs Face Tough Choices When Trump Targets Their Outside Law Firm” —
- “There’s fear in Big Law right now over Trump’s moves against the legal profession, and indecision over how to respond. Capitulate, as Paul Weiss did just days after being targeted? Or fire back with a lawsuit, as Perkins Coie did. As an in-house lawyer or general counsel, you aren’t simply a spectator—you have your own significant decisions to make about how your legal department will get involved in the looming legal showdown.”
- “First, we increasingly will see law firms choose a side—there will be firms that actively seek to benefit from their ties to the Trump administration, those who intentionally shy away from the conflict, such as Paul Weiss, and those who fight.”
- “The answer to that question depends on your values, and your company’s values, and it requires a bigger discussion with your executive team and board. You have an obligation to your shareholders and other stakeholders, and supporting a firm that actively challenges the administration, or is targeted by the administration, carries risk.”
- “If your business depends on federal contracts or cultivating relationships with the federal government, your choice of counsel increasingly may take on great significance. How much risk are you willing to take to stand with a law firm you want to work with? Can your firm be effective if they can’t enter a federal building, or even engage with federal employees?”
- “You may respect the firm’s courage and detest the idea of working with another firm whose values aren’t aligned with your personal beliefs. But you also must consider how much pain your business will endure to do what feels like the right thing, and whether your first-choice counsel can get the work done in this environment—you should get internal alignment when making this kind of call.”
- “And there’s a bigger set of questions around your voice. Do you use your position as a legal leader to speak up about what you’re seeing? Do you work through associations, or form them, to express your views on what’s happening to the rule of law—there’s some level of safety in numbers, and the opportunity to have greater impact with a larger group, a louder chorus.”
- “Trump’s efforts to intimidate lawyers become more challenging with each additional lawyer who speaks up. Again, this is a discussion that in-house legal leaders should have with the rest of the executive team—they should understand that as an attorney, you have a higher obligation to uphold the Constitution and support the rule of law. There may be consequences to taking a public stand, and not every company will be supportive. But silence has a price too.”
- “There always will be lawyers willing to step up and take on the administration. Trump’s biggest challenge in his war on the law are the judges, who have the power and independence to at least slow down his agenda—and Trump doesn’t like it.”
- “We’re headed for a series of showdowns around the power of the president, and the forum will likely be the US Supreme Court for many of them… Martin Luther King, Jr. said it best: ‘In the end, we will remember not the words of our enemies, but the silence of our friends.’ There’s a bigger picture here, a long-term view, and the world will have a long memory about how each company, each law firm, each attorney responded when it was hard to do the right thing.”
Stacie Rosenzweig of the Ethicking blog writes: “Lawyering in a Time of Lawlessness (And Also Probably Cholera)” —
- “I write a snark blog. Snark blogs are better suited to schadenfreude-type grimness and not existential grimness. Things have taken an existentially grim turn, folks. But here we are. It’s a multi-alarm fire this time.”
- “Since I last wrote about this subject, my nerd association put out a statement condemning the current administration’s attack on lawyers., in response to executive orders purporting to revoke security clearances and restrict lawyers’ ability to practice, against Covington & Burling, but Perkins Coie. After the APRL statement, the administration issued a similar order against Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul, Weiss). “
- “Today, however, the administration announced that Paul, Weiss has capitulated to its demands. As reported by The Hill:”
- “I am not prone to hyperbole or overreaction, so when I say ~this is an existential threat to law practice~ I mean what I say. And this is an existential threat to law practice. And democracy. “
- “In a democracy, the government should not be dictating what clients or causes private law firms work for. It should not be shaking down these firms, or the clients of these firms, for political gain (or any other reason). If an administration has a problem with a particular lawyer or law firm based on actual conduct or misconduct, there are processes in place to address that. It should not be doing any of this.”
- “This is also not the time for law firms to be buckling. These orders are likely unconstitutional. Perkins Coie has already won an injunction. How is any client going to trust that a firm that agrees to these terms is going to be working for their best interests and not the administration’s? How is any client going to trust that their confidences are being kept, if the administration seeks proof of compliance? How is Paul, Weiss exercising its professional independence, as required? Are associates going to be conscripted into furthering an agenda they find repugnant? Being willing to work many, many hours a week on pharmaceutical mergers or whatever does not mean being willing to work on criminalizing gender transitions or disappearing people because they’re fans of Real Madrid who happen to be brown. “
- “This is deeply, deeply personal to me. As you may know, when I do not have my Ethicking hat on (and sometimes, even when I do) I have my Election Law hat on. I’ve tried to not let that part of my practice bleed into this blog, but now it’s inevitable. When I represent lawyers and others, I represent a broad spectrum of clients, without regard to political affiliation. When I have my Election Law hat on (or, for those of you who know me on Facebook, my Election Lawyer Barbie profile picture up), I represent Democrats. I co-counseled with Perkins Coie for a solid year, and they are some of the smartest, most dedicated lawyers I know. I make no secret of any of this (except what I need to keep secret, of course). “
- “I don’t wish to represent Republicans in election matters, and it would be a conflict of interest for me to do so—in many cases, a concurrent conflict. Beyond that, lawyers are allowed to decline representation if our personal interests would materially limit our ability to work with their client—in fact, we are required to do so if we don’t think we could do the work adequately or if our clients won’t give informed consent to waive the conflict. I sure as hell do not believe I could appropriately represent a candidate whose views and policies I strenuously oppose, in an election setting, where the fruits of my labor would be electing a candidate whose views and policies I strenuously oppose. ”
“Does the president expect us to violate our own oaths, our professional independence, our personal morals, our First Amendment rights so…we don’t hurt his feelings? Is this where we are? “
“Trump Targets Jenner & Block Via Clients, Widening Big Law Fight” —
- “President Donald Trump’s new executive order against Jenner & Block threatens the firm’s relationship with a top client, aerospace and defense company General Dynamics.”
- “Trump on Tuesday [3/25] made Jenner the fourth major law firm hit for ties to lawyers he considers enemies. The president ordered agencies to restrict firm employees from accessing US buildings, strip lawyers’ security clearances, and investigate diversity hiring practices. He also directed agencies to terminate government contracts with Jenner clients.”
- “General Dynamics has received $102.8 billion in unclassified federal contracts since start of fiscal year 2021, according to a Bloomberg Government database. The company, whose ties to Jenner span more than half a century, this year won a contract worth more than $43 million from the Health and Human Services Department.”
- “The new order against Jenner singles out former firm partner Andrew Weissmann. The ex-Justice Department official was a top member of Robert Mueller’s special counsel team who had a lead role in securing the convictions of Trump campaign officials Paul Manafort and Rick Gates.”
- “In a March 14 speech at the Justice Department, Trump called Weissmann ‘scum.'”
- “Jenner and Block said in a statement Tuesday: ‘We remain focused on serving and safeguarding our clients’ interests with the dedication, integrity, and expertise that has defined our firm for more than one hundred years and will pursue all appropriate remedies.'”
- “Weissmann on Monday criticized the Paul Weiss deal with Trump, in which the firm agreed to spend $40 million in pro bono legal services to support administration goals.”
“‘The right response is not appeasement or silence,’ Weissmann wrote in a social media post. ‘Capitulation serves as a clarion call to further such improper action by this administration.'”
Clients Threatened”
- “Jenner & Block is one of the 100 highest-grossing law firms in the country with $582 million in revenue in 2023, according to the American Lawyer.”
- “Trump’s order states that Jenner & Block ‘is yet another law firm that has abandoned the profession’s highest ideals, condoned partisan ‘lawfare,’ and abused its pro bono practice to engage in activities that undermine justice and the interests of the United States.'”
“Paul Weiss Alumni Call Trump Agreement ‘Craven Surrender’” —
- “About 90 Paul Weiss former associates signed their names to a letter Monday [3/24] criticizing chairman Brad Karp’s deal with the Trump administration.”
- “‘Instead of a ringing defense of the values of democracy, we witnessed a craven surrender to, and thus complicity in, what is perhaps the gravest threat to the independence of the legal profession since at least the days of Senator Joseph McCarthy,’ the associates said.”
- “A representative for Paul Weiss said the firm has more than 4,100 living alumni. Karp, in a firmwide letter over the weekend, said it was ‘very likely’ Paul Weiss couldn’t survive a protracted dispute with the Trump presidency.”
- “The associates in their letter called on the firm to issue an ‘unambiguous statement’ that it adheres to principles essential to its mission and that it rejects the administration’s attacks on courts and the rule of law.”
- “Trump, when asked at the White House on Monday about his law firm executive orders, said others want to settle. ‘I just think that the law firms have to behave themselves,’ he said.”
“New York Times: To the Editor” —
- “My grandfather Louis S. Weiss was a founding partner of Paul, Weiss. My father, Louis H. Pollak (who President Trump would have classified as a “radical left lunatic”), was a federal judge, civil rights advocate and constitutional law expert who worked briefly at that firm. Both of these lawyers would have been horrified by Brad Karp’s capitulation to the Trump administration. They might even have called the $40 million deal a payoff — and a spineless one at that. — Sally Pollak,Burlington, Vt.”
“Paul Weiss Associates, It’s Time to Reflect on Why You’re Lawyers” —
- “UW School of Law’s Eric Schnapper says Paul Weiss’ early-career lawyers must decide whether the firm’s deal with the Trump administration is compatible with their reasons for entering the profession. Now would be a good time to try to remember why you went to law school in the first place.”
- “Perhaps your goal was always to work for a premier corporate law firm. In that case, things are going well—Paul Weiss is one of the nation’s great firms. You have a chance to represent some of the bluest blue-chip corporations, to work on deals of astounding financial importance, and to bask in the well-deserved prestige of your office. The hours may be long—OK, very long—but the pay is lavish.”
- “If that was the only reason you went to law school, you can stop reading this letter and get back to running up those billable hours.”
- “But maybe you were hoping that by going to law school, you would have a chance to work for a conservative president, at the Department of Justice, getting the opportunity to use the power of the federal government to reduce regulation and eliminate the deep state. If you graduated from law school when there was a Democrat in the White House, that timing was inopportune.”
- “If so, the firm’s leaders have saved the day by making a deal with the administration that would rescind the order in exchange for legal services to help advance the administration’s goals—which included allowing an audit of the firm’s diversity, equity, and inclusion practices.”
- “You could be among the many associates assigned to do legal work in support of the Trump administration. Perhaps you can do something on behalf of veterans (though you likely won’t be helping reinstate the more than 1,000 laid-off employees at the Department of Veterans Affairs). Or you might have an opportunity to write a brief in support of the deportation of people with whose views you (and quite possibly I) strongly disagree. You’re in the right place at the right time.”
- “Of course, there’s a third possibility. You might have gone to law school because you believed in the rule of law and were confident that it applied to everyone, from immigrants to the US president. You might have thought that you could use your legal training to help those less fortunate than yourself.”
- “You may also have hoped that if a day ever came when government power was being gravely abused, you would be able to defend—and have the courage to represent—the victims of that governmental misconduct. At least you were sure that you wouldn’t work for a firm which, if push came to shove, would put profit ahead of principle.”
- “If that is why you went to law school, you may be in the wrong place at the wrong time. Push indeed came to shove, and Paul Weiss decided not to stand up, alongside Perkins Coie and Covington & Burling, to reprisals from Trump. The regime Paul Weiss is now attempting to placate will demand more tribute, obeisance, and self-censorship.”
- “There will come a day when you are at a law school reunion, talking with your former classmates about what each of you did with your careers and your lives. Some will boast about how they ascended to partnerships at prominent firms, describing their lovely co-ops or houses, and their vacations on Nantucket. Most of your classmates will at least be able to say they didn’t work at a firm that acquiesced to threats and retribution by the Trump administration, smoothing the path to retaliation against others.”
- “There might be a few former classmates who will tell a far different story—of the federal worker whose job they saved, of the agency or program whose dismantlement they helped prevent, of the hospital still open—because of the manner in which they used their legal education.”
- “Now would be a good time to decide who you want to be at that reunion.”
“Trump targeted 20 of the biggest law firms over their diversity programs. A GOP favorite is missing from the list” —
- “In the latest salvo, Andrea Lucas, the newly minted acting chair of the US Equal Employment Opportunity Commission, sent letters to 20 of the country’s most prominent big law firms with detailed questions about their diversity programs.”
- “One law firm absent from the target list is Jones Day. Jones Day has been closely intertwined with Trump’s White House. The firm represented Donald Trump’s 2016 and 2020 presidential campaigns and the Republican National Committee in 2024.”
- “Jones Day also appears to have many of the same diversity programs as the 20 law firms Lucas contacted.”
- “Under the header of ‘Diversity, Equity, and Inclusion,’ a 2024 Jones Day brochure on the firm’s diversity touts how it ‘aggressively pursues’ hiring and career development of lawyers from ‘historically underrepresented backgrounds.'”
- “Every year, Jones Day hosts a ‘Diversity Conference’ for first-year law students. This year’s is scheduled to take place in April in Atlanta, Georgia, according to its website.”
“The firm also has affinity groups that ‘celebrate diversity within our organization,’ including chapters for Black, Hispanic, and LGBTQ+ lawyers.”
- “A Jones Day representative didn’t respond to requests for comment.”
- “The rank-and-file of Jones Day predominantly supports Democrats. In the 2024 election, its employees donated five times as much money to Kamala Harris’ presidential campaign compared to Trump’s, according to Federal Elections Committee data compiled by Open Secrets.”
- “Don McGahn, a prominent Jones Day lawyer, served as White House counsel during Trump’s first term, leading the selection of federal court appointments. And the firm’s attorneys have continued to find their way to powerful positions in the second Trump administration.”
- “Other elite Trump-friendly firms, like Sullivan & Cromwell, which agreed to appeal his Manhattan criminal conviction, and Troutman Pepper Locke, which represented Trump family members in the New York Attorney General’s civil fraud trial against the Trump Organization, are also missing from the EEOC list.”
- “Earlier this month, the president of the American Bar Association criticized ‘a clear and disconcerting pattern’ where Trump targeted lawyers representing ‘parties the administration does not like’ to intimidate critics.”
- “‘Clients have the right to have access to their lawyer without interference by the government,’ William R. Bay said in a statement. ‘Lawyers must be free to represent clients and perform their ethical duty without fear of retribution.'”
“This Law Firm Stood Up to Government Intimidation — and Came Out on Top” —
- “One afternoon in the early 1950s, the lawyer Paul Porter was walking through his private club in Washington when a fellow member accosted him. Porter’s firm, Arnold, Fortas & Porter, was only a few years old, but it was already well known around the capital for representing federal employees accused of disloyalty by the Truman administration — as many as 200 a year, almost all pro bono. It was a risk that few other firms were willing to take at the height of the Red Scare.”
- “‘Paul, I understand your firm is engaged in defending communists and homosexuals,’ the man sneered.”
- “‘That’s right,’ Porter shot back, then deadpanned: ‘What can I do for you?'”
- “In later years, this encounter, or some version of it, became part of the lore around Arnold, Fortas & Porter. It spoke to the firm’s eager embrace of civil-liberties cases in the face of mounting government intrusion into the private lives of millions of its employees, as well as a legal community that overwhelmingly shrank from the moment, lest it lose clients and gain the unwanted attention of Sen. Joseph McCarthy.”
- “Despite the risks, taking on loyalty cases did not doom Arnold, Fortas & Porter. It grew steadily, and today, under the official name of Arnold & Porter Kaye Scholer, it is one of the largest firms in the world, with over 1,000 lawyers based in six countries. If anything, standing up to the Red Scare earned it a reputation for fearlessness, while costing little in the way of lost business — though at least one client, Sun Oil, is said to have dropped the firm because of its civil-liberties activism.”
- “For that reason, some have questioned the purity of Arnold, Porter, & Fortas’s motives. Perhaps it was in part a marketing gimmick. But if so, it was a huge risk, one that the three highly regarded founders did not need to take. And if it was such a great gimmick, why was Arnold, Fortas & Porter the only one to try it?”
- “It may be unfair to hold up the Red Scare experience of Arnold, Fortas & Porter as a model for today’s firms, which may face penalties worse than lost clients. But it is also worth recognizing that the fledgling firm, confronted with a choice between following the crowd and speaking up, took the difficult route. And it paid off in a reputation that outlasted the government’s witch hunt.”
- “‘We were scared,’ Fortas said, years later. ‘But on the other hand, what was there to be done?'”