Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Legal Profession (page 1 of 2)

Legal Malpractice and Violations of Professional Rules Now Have Significant Bankruptcy Consequences

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Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law

Lawyers will now have more reasons to avoid committing malpractice. In Estate of Cora v. Jahrling, the Seventh Circuit held that a lawyer filing for bankruptcy could not discharge a malpractice judgment if it constituted defalcation while acting in a fiduciary role.

Illinois attorney John Jahrling represented ninety-year-old Stanley Cora in a real estate transaction to sell his home. Unfortunately, Mr. Cora only spoke polish, and Jahrling was unable to communicate with his client. However, the opposing attorney was conversant in Polish so Jahrling relied on him to translate and communicate with his client.

The transaction ended in a windfall for the adverse parties, with Mr. Cora agreeing to sell his home for a mere $35,000. The home was actually valued at $106,000 and the buyers eventually resold the home for $145,000. Mr. Cora also believed one term of the transaction gave him a life estate that would allow him to live in the upstairs apartment of the house free of charge. This agreement was lost in translation either intentionally or accidentally, and it was not included in the sale contract.

Mr. Cora sued in state court for malpractice, but passed away before the suit could take place. His estate then continued the lawsuit on his behalf. The estate eventually received a malpractice award of $26,000 plus costs.

Jahrling later filed for Chapter 7 bankruptcy, and Mr. Cora’s estate argued that the judgment was not dischargeable in bankruptcy under 11 U.S.C. 523(a)(4), which prohibits discharging debts obtained “for fraud or defalcation while acting in a fiduciary capacity”. The bankruptcy court found in favor of Mr. Cora’s estate, holding that his conduct not only amounted to a defalcation of a fiduciary duty, but that he clearly disregarded a risk that he would violate this duty by relying on an adverse party to meet his client’s interests.

“Defalcation” is an abstruse term that courts have been struggling to define. The Seventh Circuit noted that it is, “a word only lawyers and judges could love”. But generally, it refers to the misappropriation of money when someone breaches a fiduciary duty.

The Seventh Circuit applied Supreme Court precedent Bullock v. Bank Champaign, which held that debts occurring from defalcation while acting in fiduciary manner are not dischargeable. Bullock also established the state of mind required to show whether defalcation occurred. Under Bullock, defalcation requires gross recklessness or knowledge of the improper nature of the fiduciary behavior.

The Seventh Circuit affirmed the bankruptcy court’s analysis under Bullock that Jahrling’s violation of the professional rules of conductwas circumstantial evidence that he acted with gross recklessness. The fact that Jahrling made no effort to communicate with Mr. Cora except through adverse counsel despite the obvious risks associated with this conduct was also sufficient circumstantial evidence of his recklessness.

Committing malpractice and violating rules of professional responsibility have now become even more significant through this ruling. Unlike with legal malpractice cases, violations of professional responsibility are not proof of legal breaches of duty. Nonetheless, both violations have been held to be permissible circumstantial evidence of recklessness that ultimately may leave bankrupt lawyers on the hook for non-dischargeable judgments.

Justice Is Never Free… In Regard to Attorney’s Fees

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By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Goesel v. Boley International (H.K.) Ltd., et al., is a very unfortunate case involving a minor child that suffered a life changing injury resulting from a negligently designed and produced toy robot. This case never made it to trial because the two parties settled the day before the trial was set to start.

Goesel, who was five years old at the time of the incident, was playing with a toy robot that was designed and produced by Boley International (Boley). The toy robot shattered which lead to pieces of the robot piercing Goesel’s right eye lens. This injury resulted in irreversible damage, and caused him great pain and suffering. Goesel’s parents hired the law firm of William, Bax & Saltzman to sue Boley for the damage they caused to their son.

This case came before the Seventh Circuit on appeal because of a disagreement between Goesel’s counsel and the presiding judge on how much the attorney’s fees would be. The parties settled on the amount of $687,500 to be paid to Goesel by Boley for the injury he sustained. Personal injury cases are, traditionally, taken on by attorneys on a contingency fee basis. This means that the attorney will only get paid if the plaintiff were to win the case. If the plaintiff were to lose the case, then the attorney will not get paid for the services provided. This is exactly the type of arrangement that was agreed upon in this case. The retainer agreement stipulated that if Goesel won the case then the firm would receive one-third (1/3) of the settlement, and all litigation expenses were to be paid by Goesel from the settlement. This type of retainer is common practice for firms that take on personal injury cases.

The seventh circuit decided that Goesel’s counsel was entitled to all of the attorney’s fees under the retainer agreement, which was reasonable, and that the trial judge was wrong in the ruling. The seventh circuit awarded the attorney’s fees saying that they were reasonable. The fees ended up being about 58% of the settlement leaving Goesel with only about 42% of the settlement. Opinions will be different on whether or not this amount was fair; however, the key principle to remember is that there is an expectation (and an obligation) for an attorney to work endless hours to get the best result for their clients. Therefore, they not be compensated reasonably and fairly.

 

Motion to Dismiss? Seventh Circuit Says “Not So Fast.”

By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Recently the Seventh Circuit  decided that the Federal District Court for the Southern District of Illinois erred when it dismissed Dr. Robert L. Meinders, D.C., Ltd., v. UnitedHealthcare, Inc., et al. because the district court denied Dr. Meinders (Meinders) due process when it dismissed the case without allowing Meinders reasonable time to respond. Meinders filed a complaint against UnitedHealthcare (United) in Illinois State court in 2014. Meinders claimed that United violated the Telephone Consumer Protection Act (TCPA) and the Illinois Consumer Fraud and Deceptive Practices Act when they sent him unsolicited junk faxadvertisements. United had the case removed to the Federal District court because it involved a federal question since the TCPA is a federal Statute.

In 2013, Meinders and ACN Group, Inc., a subsidiary of United, entered a provider agreement. After Meinders entered this agreement, he started to receive junk faxfrom United. Under the provider agreement, any dispute arising from the agreement were subject to arbitration. United claimed that they were protected by this agreement because ACN Group was one of their subsidiaries. Therefore, United argued that this dispute needed to go through arbitration as was priorly agreed to. However, the Seventh Circuit said United is not protected by the agreement because they, themselves, were not a party to the agreement. The seventh circuit continued by explaining that a parent company cannot enforce an arbitration agreement of a subsidiary when only the subsidiary was a party to the agreement.

Meinders heavily relied on the contract theory of “If your are not a party to the agreement you cannot make a claim under that agreement.” In response, United introduced new evidence stating that they were a party to the agreement. Colleen Van Ham, President and CEO of UnitedHealthcare of Illinois, stated that ACN Group was a wholly owned subsidiary, thus making United a party to the agreement. United also argued that it assumed important obligations under the provider agreement such as  ACN Groups obligation to coordinate and transmit payments to providers.

Meinders asked the federal district court to strike the new evidence from the brief, or to allow them to file a reply brief to counter the new evidence. The federal district court denied Meinders request, and allowed Uniteds motion to dismiss so that the case could move to arbitration, as according to the providers’ agreement. Meinders then filed for appeal. The seventh circuit concluded that Meinders did not have a fair and reasonable opportunity to respond to Uniteds reply brief that introduced new evidence. So the court reversed the federal districts court decision to dismiss, and remanded the case for further proceedings.

The Ethical Minefield

UntitledBy: Anjelica Violi
Valparaiso University Law School
J.D. Candidate, 2016

Legal ethics today have become increasingly “sticky” and, in some situations, lead attorneys to be sanctioned or even disbarred. Perhaps it is not always a matter of ethics, but it may be a matter of diligence. Professional ethics are an important component of practicing law, and a responsible lawyer should abide by such ethics.

The American Bar Association’s 1908 Canons of Professional Ethics was the early set of professional responsibility rules, which was later amended in 1963, leading to the establishment of the Model Code of Professional Responsibility in 1969. The most recently adopted professional conduct rules used today, established in 1983, are the Model Rules of Professional Conduct. The majority of states have adopted some form of the ABA’s Model Rules of Professional Conduct.

A 2010 ABA article, Avoiding Malpractice – Are You At Risk?, listed the most common legal malpractice claims in the United States and Canada. The figures come from studies prepared by the ABA Standing Committee on Lawyers’ Professional Liability, and include data provided by insurers from 42,076 American claims. The top three claims were: failing to know or apply the law, planning error, and inadequate discovery or investigation. While these studies may not be the most recent, the same errors constantly seem to be made by attorneys.

A 2007 ABA Journal article discusses the Top 10 Ethics Traps with real situations experienced by attorneys and how to (potentially) avoid them, and if not, fix them. Several ethical “traps” discussed include ending client-lawyer relationships, failing to communicate with clients, and how to handle pressure from superiors on participating in unethical conduct. ABA articles such as this can be helpful resources for lawyers who are unsure of what to do in certain circumstances, and can be used in addition to referencing a state’s code of ethics (or the ABA’s). The ABA also provides Continuing Legal Education programs on professional ethics.

If the attorney in the recent Seventh Circuit case PNC Bank v. Spencer had referenced the above ABA resources, she could have avoided sanctions that now hang over her head. In Spencer, an attorney was retained in a foreclosure suit. After filing the case in Wisconsin, the attorney removed the case to federal court after she learned whom the “real party of interest was.” The Wisconsin Supreme Court concluded that the attorney had no basis for federal jurisdiction because the recently discovered party was never a party to the case. Furthermore, the Court stated that there was “no good faith argument for changing existing law,” and that the lawyer had continuously attempted to delay foreclosure that was properly before the state court. The Seventh Circuit later stated that, “the removal was party of a strategy designed to gum up the progress of the case.” While it is a common strategy among lawyers to attempt small delays, there is a fine line between what is ethical and what is not. Wasting the Court’s time falls on the unethical side.

In addition to misconduct, the attorney also accused the Seventh Circuit of publishing “false statements” in its opinion, accused a state judge and court reporter of “fraudulently manipulating transcripts,” accused a district judge of pursuing a libel campaign against her, and finally that opposing counsel was engaging in civil fraud and racketeering. (The Seventh Circuit was not impressed).

The Seventh Circuit also learned that the attorney’s previous conduct, “appeared to be…a pattern of troubling litigation tactics” and that her license had been suspended in another state (though it was later reinstated) for similar misconduct in order to delay proceedings. The Court stated, “a review of [the attorney’s] other recent litigation makes clear that she has a pattern of engaging in this type of antagonistic behavior.” The Court imposed a $2,500 sanction, but suspended it. If the attorney ever files another frivolous claim the Court will enforce the $2,500 sanction. A copy of this order and the Court’s opinion was forwarded to the Office of Lawyer Regulation of the Wisconsin Supreme Court.

Overall, PNC Bank v. Spencer is an excellent example of why attorneys should be wary of engaging in misconduct, and why it is not a good idea to act out against others in an unprofessional manner unbefitting a lawyer. The Seventh Circuit did not appreciate the blatant disrespect for the Court, and it is safe to say that most courts do not appreciate spending time on lawyers who are unethical and unprofessional.

Perhaps some attorneys have no qualms about pushing the envelope of ethics, but is it worth the risk? And is it worth ruining one’s professional reputation and possibly losing one’s law license? Where do you draw the line between ethical and unethical?

Don’t Blame the Judge, Blame Your Lawyer

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By: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

When you believe a judge is wrong in a ruling, you appeal the judge’s decision. When you believe your lawyer is incompetent in representing your case, you sue for malpractice. Sometimes it takes a Seventh Circuit Court of Appeals ruling to know that.

The Seventh Circuit waded through a quagmire of lawyerly fumbles and pro se filings that is Sheikh v. Grant Regional Health Center last week. Mr. Sheikh originally filed as a pro se litigant, representing himself against his former employer of one month, Grant Regional Health center but quickly retained, and then subsequently lost, an attorney. For a year and a half, Mr. Sheikh represented himself until he hired a different attorney to file his response to Defendant’s motion for summary judgment. Unfortunately for Mr. Sheikh, his lawyer was less than effective. The attorney did not file anything, which forced Mr. Sheikh to do the work himself, and miss a deadline in the process. Mr. Sheikh lost on the motion for summary judgment and appealed from the judge’s order that Mr. Sheikh could not for any reason get an extension for filing.

Although Judge Posner and the Seventh Circuit Court were sympathetic to Mr. Sheikh’s plight, they did not find any substantial error of the lower court’s actions. Mr. Sheikh had a rough experience as a litigant, losing one lawyer immediately, and an even rougher time when his second lawyer made a mess of his response to opposing counsel’s motion for summary judgment, forcing Mr. Sheikh to represent himself and file a nonsensical affidavit and another document after the judge’s deadline for filing.

But none of these failures by Mr. Sheikh or his lawyers put any fault on the lower court judge. Mr. Sheikh is still bound by the lawyer’s actions, and his lawyer’s failure to file a proper response in the proper time ends up falling on Mr. Sheikh’s shoulders. Mr. Sheikh was right to blame his lawyer for being incompetent, but his recourse is not to appeal the judge’s ruling, it is to sue his ineffective counsel for malpractice.

The Seventh Circuit does find one fault with the lower court judge. As it turns out, telling a party that they cannot have an extension in any circumstance is improper, as certain circumstances do allow for extensions to be granted. However, Mr. Sheikh never gave an explanation as to why his responses were late and incomplete in the first place. Therefore, with no explanation to the tardiness or incompleteness of his responses, Mr. Sheikh’s argument failed.

It is almost always unwise to represent yourself in a case, but sometimes you have no choice. Mr. Sheikh might have won his appeal had he provided a reason for why the filings were incomplete or late, but in the absence of an excuse or reason, the lower court’s decision stands. The one positive that comes from this for Mr. Sheikh is, as the Seventh Circuit tells us, if you have a lawyer, you can always go after them for ineffective assistance of counsel.

Pro Se Patience Is A Virtue, But It Only Goes So Far

untitledBy: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

Gersh Zavodnik is one lucky pro se litigant. He may have lost his Indiana Supreme Court case, but he could have been sanctioned into oblivion. Despite his “abusive and vexatious litigation practices,” and being labeled “a prolific, abusive litigant,” Mr. Zavodnik and his dozens of cases in Indiana survive another day, but his days might be numbered as a frequent user of the Indiana court system.

Zavodnik v. Harper represents a new era in Indiana justice for pro se litigants. Mr. Zavodnik is well known among the judiciary in Marion and surrounding counties. Since 2008[,] he has filed 123 civil lawsuits and [he] has 34 cases [pending?] before the Indiana Court of Appeals. Most of these cases are now described by the Indiana Supreme Court as being “defective, repetitive, and lacking merit.” For years now, Mr. Zavodnik has attacked the courts as well as his opponents. He has accused judges of forming a ‘legal mafia’ bent on dismissing his claims, tampering with evidence, colluding against him with pro se litigants, and treating him differently from attorneys. Mr. Zavodnik accused the Indiana Supreme Court of enabling this legal c conspiracy by being inadequate in its job.

Mr. Zavodnik may be correct on one point: judges would treat attorneys differently. Judges probably would have sanctioned an attorney for filing over 100 frivolous, baseless or defective lawsuits and for failing to follow proper procedure. The Indiana Supreme Court noted that had an attorney filed these cases, discipline could have been triggered under multiple rules of professional conduct.

In this way at least Mr. Zavodnik seems lucky since he is not bound by professional conduct rules. However, Mr. Zavodnik argued repeatedly that as a pro se litigant he was disadvantaged in the courtroom. This seems true in only one aspect: if Mr. Zavodnik had counsel, he probably would have been advised to not make personal attacks on officers of the court.

In Harper, the Indiana Supreme Court, after reviewing Mr. Zavadonik’s pleadings and arguments, held that his litigation amounted to attempts to grind the judicial machine to a halt. While declining to sanction him, the court set out a number of sanctions and preventative practices for any judge dealing with an abusive pro se litigant. These methods ranged from minor (limiting the number of pages and requiring concise clear statements in pleadings) to the more severe (requiring affidavits and limiting the petitioner’s access to the courts except in cases of immediate danger of bodily harm). And, of course, the courts may impose fines.

Finally, the Indiana Supreme Court has set down instructions for future courts to crack down on abusers of the system, be they pro se litigants or bar-admitted attorneys.

Mr. Zavodnik would do well to take the Indiana Supreme Court’s lesson to heart, as he has numerous cases still pending, but judging from his recent interview with the Indy Star, this does not seem likely. Perhaps now would be a good time for Mr. Zavodnik to seek counsel.

Suiting Up for Battle: Proper Courtroom Attire

By: Anjelica Violi
Valparaiso University Law School
J.D. Candidate, 2016

Jack McCoy, Olivia Pope, and Harvey Specter. Not every lawyer can look as sophisticated or polished on a day-to-day basis as their television counterparts.

While some fields such as business may go more casual, the legal world requires professionally dressed and ready to work attorneys. Showing up in court without a tie and a tucked in shirt might as well be a death sentence for any respectable lawyer. A courtroom is a stage and one must look his or her best, right down to their socks.

In Indiana, Blackford Circuit Judge Young recently cracked down on an attorney for not wearing socks in court. It was pointed out that the attorney, dubbed the “Matthew McConaughey” of the Indiana Bar, previously had not worn ties for other court appearances and occasionally wore open collar shirts.

Apparently, it was on record that the attorney stated, “I hate socks.” Unfortunately, Judge Young was not impressed with that statement, or the lack of socks with shoes. (In a recent Indiana Lawyer poll 63% of those polled agreed men should wear socks in court).

Five years ago at the 2009 Seventh Circuit Bar Association’s annual meeting, the topic of professional attire was heavily debated. It was pointed out that law schools should make it a point to educate law students on what is considered “appropriate attire.”

Today, lawyers have more opportunities to be creative in professional dress than 20 years ago. For example, female attorneys now have the popular option of pantsuits, and men can wear bright or patterned ties. However, wearing something unique or with color may draw more attention from the jury and detract attention from opposing counsel. This could be a positive or negative for one’s case.

Though not all lawyers attend court cases or meetings each day, having a backup suit in the office or car is a good idea. It can depend upon the setting and a person’s own personality, but the formal atmosphere of the courtroom is important to keep in mind. The ABA recommends an easy tip: The higher the court, the more formal the dress.

Conservative dress not only applies to most attorneys but also applies to any person stepping foot inside a courtroom. There are

common incidents when a plaintiff or defendant shows up in inappropriate attire. Recently, in a Georgia court a woman was asked to leave when she showed up wearing casual sandals (although to be fair, the judge thought she was wearing flip flops). Court officials generally have a listing on webpages for what is considered inappropriate such as shorts, ripped pants, tank tops, or flip-flops.

As the ever-debonair Cary Grant once said, “My father used to say, ‘Let them see you and not the suit. That is secondary.” But at the end of the day, the Golden Rule for all lawyers, especially those who appear in court, is to wear a suit. (And socks when necessary). As Olivia Pope always says, lawyers are “gladiators in suits.”

What do you think ladies and gentlemen of the law world? Should law schools make more of an effort to educate students on professional dress? Would it make any difference? Do you think the legal world will eventually come to accept a more “casual look?” Perhaps we are tempted to go back and take a look in our closets…

Walker Investigation Found to be a State Issue

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By: Alexander Salvi
Valparaiso University School of Law
J.D. Candidate, 2016

The Seventh Circuit Court of Appeals unanimously overturned a lower court ruling that halted an investigation into allegations of illegal coordination between Governor Scott Walker’s re-election campaign and nearly two dozen conservative groups.

The three judge panel hearing O’Keefe v. Chisholm included Ford appointee William Bauer, Clinton appointee Diane Wood, and Reagan appointee Frank Easterbrook. Although the lower court ruled that the investigation infringed upon political rights protected by the First Amendment of the United States Constitution, the court of appeals concluded that federal courts do not have a place in state criminal proceedings. Therefore, state courts are the proper venue to resolve such a legal issue. “State courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt,” the three-judge panel ruled. The state of Wisconsin will now decide whether to continue the investigation into Governor Walker’s alleged campaign finance violations.

Walker made a national name for himself when he challenged public sector unions in 2011by eliminating collective bargaining rights for public employees. That decision led to a 2012 recall of Walker, which he ultimately won with 53% of the vote, making him the first governor in United States history to overcome a recall election.

The current investigation largely revolves around the type of political activity taken by conservative groups during the 2011 recall campaign, and whether such activity violated laws prohibiting coordination with candidates and political donations. In 2012, Walker raised $25.3 million for his campaign, 57% of which came from out of state. This was an amount that towered over his opponent Tom Barrett, who raised $831,510, 13% of which came out of state.

The First Amendment protects most independent expenditures by outside groups as speech, but those groups generally are not allowed to coordinate with officeholders or their staff. This was the violation that prosecutor Francis Schmitz alleged, claiming that Walker was part of a “criminal scheme” to coordinate fundraising for Republicans and conservative groups who were involved in a tough 2012 recall campaign against Walker and several GOP elected officials.

The case began earlier this year when multiple conservative groups, known to be supporters of Walker, filed a federal lawsuit. The plaintiff, Wisconsin Club for Growth, argued that the investigation was a violation of their freedom of speech rights. At the district court, Judge Rudolph Randa granted a preliminary injunction ordering Wisconsin state prosecutors to halt their investigation into Governor Walker. The Seventh Circuit rejected that ruling and the Wisconsin Club for Growth can now request a rehearing by either a three-judge panel or the full Seventh Circuit.

The decision comes at a pivotal moment – as Governor Walker faces reelection this November against Democratic challenger and former Trek Bicycle Corp. executive Mary Burke. In response to the Seventh Circuit’s decision, Burke stated, “The people of Wisconsin deserve answers to the questions raised by this investigation, which at a minimum are very disappointing, and are potentially criminal.” According to the most recent Marquette University Poll, Walker is losing his re-election bid against Burke by 2 percentage points among likely voters. However, the poll also shows that Walker is winning by 3 points among registered voters.

The earlier decision by the district court effectively delayed the investigation when it denied requested subpoenas—a separate appeal of which is currently going through the state court system—saying there was not sufficient evidence to demonstrate anything illegal had transpired. Thus, any legitimate investigation probably won’t begin until after the outcome of the election. That’s not to say that the negative publicity won’t affect Walker’s future, as he has expressed interest in a possible Presidential run in 2016.

PACER Back on Track? Old Seventh Circuit Documents to Return

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Last week, backtracking from an earlier position, the Administrative Office of the United States Courts (AO) announced that it will restore older court records from the Seventh Circuit and three other circuits to the PACER electronic records system by the end of October. In August, the AO had abruptly announced that would no longer provide access to older cases in the Seventh Circuit and three other circuit courts. That announcement was greeted with widespread outcry.

The format in which the files will be restored was initially unclear. However, the AO’s revised announcement now states that “the judiciary will restore full electronic access to identical case information previously available to the public prior to August 11, 2014, in the affected courts.”

Besides the Seventh, the other affected circuit courts were the Second, Eleventh, and Federal Circuits. District courts were not affected at all (with the exception of one bankruptcy court in California).

The loss occurred as part of a broader overhaul of the “CM/ECF” system that attorneys use to upload documents into PACER. The documents that were lost in the transition predate the change from old 1988-era legacy systems to CM/ECF.

Until these files return to PACER, the only way researchers can retrieve them is to have the physical case file taken from the archives and then have copies made. In the Seventh Circuit, those services cost $63 per file and 50 cents per page.

The Seventh Circuit didn’t switch to CM/ECF until 2008, so all documents from closed Seventh Circuit cases filed before 2008 vanished from the PACER system in August. In the Federal Circuit, it was even worse: all documents from before 2012 disappeared.

As media reports noted, the temporarily vanished documents included records from such historically significant cases as Ricci v. DeStefano.

In the PACER system, users must pay ten cents per page to access court records. (Some users can request a fee exemption, but the denial of an exemption cannot be appealed.) Those fees add up fast, since even “simple” cases can generate thousands of pages. Consequently, PACER has long been a bone of contention between the AO and the free access to law movement.

In 2009, the movement’s late icon Aaron Swartz ran a script that downloaded 2.7 million documents from PACER for reposting on Resource.Org. The government responded with an FBI investigation of Swartz, though no charges were filed.

Today, the RECAP browser plugin allows PACER users to automatically re-upload the records they download to the Internet Archive. The AO has responded to this initiative with a warning about the security risks of open source software. Many courts also warn fee-exempt PACER users that re-sharing its documents via RECAP will violate the terms of their exemption.

The AO’s August announcement led many to hope that the AO might end this tiresome tug-of-war and simply hand the old documents to the Internet Archive for public hosting. The AO’s announcement that it was putting the documents back on PACER thus met with some disappointment.

Just as the Seventh Circuit is only one among several courts affected by this PACER issue, PACER itself is just one among many flashpoints in the struggle over public access to law. Across the world, access to laws and legal records is constrained by various means, from steep copying fees to assertions of copyright on public records and standards.

There are of course arguments against free access to law as well as for it. In PACER’s case, the main argument is that providing so many millions of documents online costs money. But opponents point to the program’s large annual surpluses as evidence that the PACER paywall is at best excessive.

The PACER paywall’s constitutionality has yet to be litigated, although a case on that question is currently in the pleadings stage in California.

A basic question underlies the PACER debate, and many others: If the law is not free, can it really be the law?

By: Samuel Henderson
Valparaiso University Law School
J.D. Candidate, 2016

Alternatives to a J.D.? The Rise of Degrees Designed for Non-Lawyers

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By: Anjelica Violi
Valparaiso University Law School
J.D. Candidate, 2016

This slowly emerging national trend has been sparking a debate in the legal world. While a growing number of law schools offer alternative Master’s programs in law, some practicing attorneys wonder if these new “legal degrees” are credible. Many attorneys are concerned about the job market for non-J.D. holding graduates and the possible ramifications.

The Indiana State Bar Association’s concern is that graduates of these programs will confuse clients by attempting to offer (illegal) legal advice and services. The tight job market is another concern for many who are currently working in or entering the legal field. The lingering question of where graduates with these degrees will somehow fit into the legal field remains unanswered.  Othernaysayers view these non-J.D. programs as another way for law schools to generate more revenue.

Alternatively, some attorneys view non-J.D. degrees as exciting. A potential benefit would be that graduates of these alterative programs will have a better understanding of the law and will be useful to work along side attorneys.

Though an alternative to law school might seem appealing to many, a non-J.D. degree is not recognized as a J.D. equivalent. The ABA policy states, “[N]o post-J.D. or other degree program is a substitute for the J.D. and should not be considered the equivalent of the J.D. for bar admission purposes.” Therefore, without admission to the bar, graduates with these alternative degrees cannot legally provide legal advice or services.

While the American Bar Association does not recognize degree programs other than a J.D., they do list alternative degrees that are available at some law schools. The ABA lists these alternative programs in three categories: Academic masters for non-lawyers, post-J.D. law degrees for practicing lawyers, and research and academic based doctorates.

(1) Academic masters degrees for non-lawyers:
J.M. Juris Master
M.J. Master of Jurisprudence
M.S.  Master of Science or Master of Studies
M.P.S.  Master of Professional Studies
M.L.S. Master of Legal Studies

2) Post-J.D. law degrees for practicing lawyers and/or foreign lawyers:
LL.M. Master of Laws
M.C.L. Master of Comparative Law

3) Research and academic-based doctorate level degrees:
J.S.D. Doctor of Jurisprudence
S.J.D. Doctor of Judicial Science
D.C.L. Doctor of Comparative Law

There there has not been much debate over this type of alternative J.D. degree because most attorneys and students are completely unaware of them. However, Loyola University Chicago School of Law has been offering M.J. degrees beginning in the 1980s, and offers a variety of concentration areas.

Comparable degree programs have been begun at other law schools, including but not limited to, University of Dayton School of Law, Loyola University Chicago School of Law, Indiana University Robert H. McKinney School of Law, University of Tulsa College of Law, Drake Law School, Wake Forest, Emory School of Law, University of Pittsburgh Law, Vermont School of Law, Seton Hall, and Widener Law School. Several law schools are even offering Masters of Jurisprudence degrees online.

Valparaiso University Law School and Indiana University Robert H. McKinney School of Law have been the first law schools in Indiana to announce these legal degrees for non-lawyers. The schools are promoting these degrees for working professionals who would like to enhance their careers with knowledge of the law.

IU McKinney School of Law implemented its Master of Jurisprudence degree program this July 2014. Valparaiso Law School, who recently implemented a new curriculum and welcomed a new dean, has yet to establish a timeline for officially implementing a Professional Studies in Law degree. The Indiana State Bar Association is planningto take a critical look at these programs beginning in 2015.

Do you believe there are benefits to the growing idea of alternative legal degrees? Might these degrees become an advanced paralegal degree or the new J.D. alternative? Do you think programs such as these will be successful and continue in the future? Or is this the hybrid lawyer of the future?

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