Articles Posted in David Badertscher

Lawyer listservs are often used by attorneys and other professionals to help keep up with changes in the law. But they pose some potential for violating confidentiality model rules

On May 8, the American Bar Association Standing Committee on Ethics and Professional Responsibility released  formal opinion 511 which provides guidance for when a lawyer can seek advice on a listserv. It finds that model rules in most cases forbid posting questions or comments related to representation of a client, even in hypothetical or abstract form.

“Formal Opinion 511 cites Rule 1.6, which deals with confidentiality and the possibility of unethical behavior under ABA Model Rules of Professional Conduct. The formal opinion finds possible ethical problems ‘if there is a reasonable likelihood that the lawyer’s questions or comments (on a listserv) will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.'”

Election administrators and their staff, spread throughout thousands of voting jurisdictions in the United States, perform a core service dedicated to maintaining and preserving our democracy. Their work has become significantly more difficult, as our contentious politics have clouded much of what they do with misunderstanding and distrust. These challenges have made clear that election administrators may, and typically do, lack the full range of resources they need.

As election officials gain both increasing  public visibility and scrutiny, it has become increasingly obvious that the time has come for identifying the ethical standards unique to the election administrator profession. It is essential to identify national standards for election officials that provide guidance  in the administration of voting throughout the United States.  It is therefore encouraging to learn that  the American Law Institute (ALI) has provided a forum, released to the public on January 29, 2024, for a working group developing such standards, resulting in a report Ethical Standards for Election Administration

The report sets out seven principles, discussed in detail, along with the basis for each. It is the hope of the working group that these principles provide the professional election administration community with a common vocabulary for communicating the moral underpinning of their work; assist in the training of the next generation of officials; and help guide officials in carrying out their responsibilities when the law does not supply the answer and public scrutiny is keenest. These principles also supply the grounds for specific standards of conduct that reflect these principles and put them into practical effect.

According to responses to the 2024 ABA Survey of Civic Literacy, 74% of individuals surveyed said that U.S. democracy is weaker than it was five years ago. Most blamed misinformation, disinformation, and political parties for contributing to this result. The survey is released each year to mark Law Day, observed annually on May 1. The responses are from a nationally representative telephone survey of 1,000 respondents from March 4-9. Here is an overview of some of the results as reported by the ABA on their website: followed by a link to the full text of the survey.

Democracy “A large majority — 74% — said U.S. democracy is weaker today than it was five years ago. Only 13% said it is stronger. Among those who said our democracy is weaker, nearly 1 in 3 (31%) said the primary cause is misinformation and disinformation. Nearly as many (29%) blamed the political parties. Less than 10% blamed social media or lack of civility. The survey also asked who should be primarily responsible for safeguarding our democracy. More than a third (37%) said it is mainly the responsibility of the general public — yet half of all respondents (exactly 50%) said the general public is not very informed about how democracy works.

According to Medicare,” Accountable Care Organizations, or ACOs, are all about providing the best types of care for patients with Medicare, while simultaneously helping to lower the cost of healthcare. They consist of a coordinated group of doctors, hospitals and various types of medical providers who work together for the benefit of the patients they serve, allowing them to get the right care when they need it.” Additionally, their mission is to help control the amount of waste in the Medicare system. This includes patients seeing more than one specialist for the same condition and undergoing the same tests, as well as excessive visits. For additional information related to controlling waste and fraud in the Medicare system see my earlier posting  Combating Fraud and Deception: Medicare’s Strategies and Initiatives .

On April 16, 2024, the Congressional Budget Office  (CBO)*  issued a report, Medicare Accountable Care Organizations: Past Performance and Future Directions, which summarizes recent research findings about Medicare accountable care organizations and the factors that have contributed to or limited their ability to achieve net budgetary savings for the Medicare program. The remainder of this posting includes a summary of this report prepared by the CBO and links to both the complete text of the report and to other publications related to it.


Thinking back on my fifty plus years as a practicing law librarian, I have come to believe that criminal law is one of the more humanistic of legal disciplines because it can reach people at such a personal level. Paul H Robinson* and Sarah M Robinson capture this thought in their book, “American Criminal Law: Its People, Principles, and Evolution” (Routledge 2022). It offers a refreshing take on this complex subject.

This book breaks away from dry legal jargon and  instead weaves a compelling narrative that explores the history, core concepts, and ongoing debates within American criminal law. The authors write, “Criminal law is one of the most interesting perspectives on the human adventure,… it requires us to examine how we want people to act, what we will do when they act improperly, and how we decide what we can reasonably expect of people. And to do this, we must assess what makes a successful society, what citizen protections and obligations a society should enforce, as well as the principles of justice that the community shares.”

The authors’ strength lies in their engaging, approach. Each chapter delves into a specific principle, like legality or culpability, by presenting a historical case that illuminates its foundation. This is then contrasted with a modern case, highlighting the evolution of the concept. This back- and- forth through time keeps the reader engaged and demonstrates how the law adapts to societal changes.

Eyewitness accounts, once considered a gold standard, have faced increasing scrutiny due to their susceptibility to memory errors and biases. Forensic evidence, while highly valuable, comes with its own set of limitations, such as the time-consuming nature of analysis and the potential for contamination.

Enter the age of technology, which has drastically altered the way law enforcement approaches suspect identification. Innovations in data collection, processing, and analysis have paved the way for faster and more accurate identification techniques. The advent of artificial intelligence (AI) technology has proven particularly transformative, revolutionizing the field of criminal investigations.

Eyewitness identification remains a cornerstone of criminal justice, despite its well-documented weaknesses. Human memory is fallible, susceptible to stress, suggestion, and bias. Artificial intelligence (AI) offers a potential revolution in this domain, but its impact is a double-edged sword.

The American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 509 on Feb. 28, 2024.  According to the announcement,  Formal Opinion 509 provides guidance on how disqualification rules apply to both current and former government lawyers under the ABA Model Rules of Professional Conduct. “It specifically addresses issues raised  when these lawyers know confidential government  information about a third person.”

The model rules define confidential government information as “information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.”

For additional discussion of Formal Opinion 509, see the recent article in the ABA Journal, Government lawyers’ use of ‘confidential information’ in private practice clarified in new ABA ethics opinion, by David L Hudson Jr.

The death penalty remains a highly contested issue in the United States, with arguments raging on both sides. However, beyond the ethical and legal debates lies a lesser-known aspect: the phenomenon of failed executions. These attempts, often characterized by prolonged suffering and technical difficulties, raise serious concerns about the very concept of a humane and constitutional capital punishment system.

Historically, the U.S. has employed various methods for execution, each with its own share of botched attempts. The electric chair, implemented in the late 19th century, witnessed numerous cases where the condemned endured extended periods of agony due to malfunctions or improper application. Lethal injection, the current primary method, has also been plagued by issues. From 2000 to 2020, an estimated 7% of all lethal injection executions were classified as botched, often involving prolonged struggles to establish an intravenous line, raising concerns about unnecessary suffering inflicted upon the condemned. It is estimated that 3% of U.S. executions in the period from 1890 to 2010 were botched.

The case of Thomas Eugene Creech in Idaho in 2023 exemplifies the harrowing realities of failed executions. Despite repeated attempts by medical personnel, a suitable vein could not be located for lethal injection, forcing the execution to be halted. This incident, like many others, highlights the inherent fallibility of the execution process where unforeseen complications can transform the intended punishment into an act of torture. In his article in Verdict discussing this case, Austin Sarat, a professor of jurisprudence and political science at Amherst College, argues that “systemic issues and denial by state officials perpetuate the cruelty and inefficiency of lethal injections, urging an acknowledgment of its failures and a cessation of its use for capital punishment”.

The following is information compiled by the Congressional Budget Office (CBO) regarding H.R.7322, Standing Up to the Executive Branch for Act 2024, as ordered reported by the House Committee of the Judiciary on February 15. 2024. It includes a brief  summary of the bill, and links to estimated cost of implementation and the full text of the legislation:


H.R. 7322 would grant standing to state governments to bring action against the federal government in a federal district court for the purpose of seeking injunctive relief from immigration enforcement decisions that have harmed the state or its residents.


Medicare, the federal health insurance program in the United States, serves millions of Americans, providing essential healthcare coverage for seniors and certain individuals with disabilities. However, with its vast reach and substantial funding, Medicare is also a target for fraud and deception. Fraudulent activities not only drain taxpayer dollars but also jeopardize the integrity of the healthcare system and endanger patient well-being. To combat these threats, Medicare employs various strategies and initiatives aimed at detecting, preventing, and prosecuting instances of fraud and deception.  Yet, some people would argue the since Medicare loses billions of dollars every year to fraud, waste, and abuse, they could do a better job at preventing fraud.


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