Sunday, November 19, 2017

In case you missed it: reminder that a lawyer's conduct outside the practice of law can have consequences

We all learned in law school that the regulation of  the profession is not really limited to practice of the profession.  And we all know that there are many many cases out there of lawyers getting in trouble for conduct in their personal lives.  But every now and then it is not bad to get a little reminder.   The latest example involves a Dallas prosecutor who got into what some have called a "drunken tirade" with an Uber driver.  The driver recorded the encounter, it went viral and the prosecutor got fired.  The fact you are a lawyer does not give you the right to claim you are more important than other people, to threaten them or to be abusive.  This should be common sense.  There are many stories and videos on the incident out there. Here is one of them:


New York Times article on whether defense lawyers should be allowed to contribute to the campaigns of District Attorneys

You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.

Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns?  The New York Times discusses the issue in a recent article you can access here.

Court of Appeals rejects appeal by lawyer who had been ordered to pay $4.2 million as sanction for sending unsolicited faxes to potential clients

In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court held that a state can not ban a lawyer from sending targeted letters to potential clients in part because the invasion of privacy involved in receiving the unsolicited letter was minimal.  As someone later put it, the trip from the mailbox to the trash can is a short one. 

You would think the same could be said about a fax (technology that is not as common these days), but in a 2013 opinion, the 7th Circuit found that unsolicited faxes sent by a Chicago lawyer to potential clients were advertisements covered by the Federal Telephone Consumer Protection Act, which imposes penalties for sending faxes without an opt-out provision.  As a result, the lawyer was ordered to pay $500 for each of his 8,430 faxes, amounting to $4.2 million.

The case has been going up and down to and from the Court of Appeals since then and just recently it was reported that the Court has denied the most recent appeal.  Go here for more details

Florida Supreme Court adopts changes to the Rules

The Legal Profession Blog is reporting that the Florida Supreme Court has adopted some significant changes to its procedural and substantive rules governing lawyers but declined to act on a proposal to amend the rule on Potentially Misleading Advertisements. Go here for details.

New York adopts new rule requiring judges to remind prosecutors to comply with duty to disclose exculpatory evidence

In response to the efforts of a task force convened by the state’s chief judge to address the causes of wrongful convictions in New York, beginning in January, judges will be required to issue an order reminding prosecutors of their obligation to turn over “information favorable to the defense” in all criminal cases.  According to the National Registry of Exonerations, 38% of the 234 exonerations in New York state have involved violations of the duty to disclose exculpatory evidence.  You can read the press release announcing the new rule here.  (This link also includes the task force's report, which makes a number of other recommendations worth reading.)  The new rule also directs judges to remind defense lawyers of their duty to provide effective assistance of counsel under Constitutional standards.   The ABA Journal has more on the story here.


7th Circuit refuses to reverse a conviction even though the prosecutor did not comply with duty of candor to disclose perjured testimony

    Applying the principle that a federal court of appeals can not reverse a conviction unless the defendant shows that the lower state court’s decision was contrary to, or an unreasonable application of, clearly established law under Supreme Court authority, the Court of Appeals for the Seventh Circuit recently refused to reverse a conviction even though the prosecutor in the case failed to comply with the duty of candor. 

    In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony.  When asked on cross–examination, the witness denied having recanted her testimony.  Both the prosecutor and defense counsel knew this was a lie.  Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand.  However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.

    The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed.  The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959)  and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.

    After an en banc rehearing, however, a majority of the court reversed.  According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

    In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony.  Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding.  Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury. 

    The Court of Appeals, however, distinguished the case before it from these two cases.  In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony. 

    In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court.  They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief. 

    According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury. 

    The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances.  A lie is a lie, and the prosecutor has a duty to correct it, they said.  The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony.  The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.  

    It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves.  Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case.  It only held that the Supreme Court has not decided it.  It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case.  I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances.  That would be wrong.

    The Marshall Project has a comment on the case here.

Tuesday, November 7, 2017

Bitcoin and the Legal Ethics of Lawyers

"Bitcoin and the Legal Ethics of Lawyers," Prof. Ron Rotunda's most recent column, is now available here.

ACLU sues Nevada alleging constitutionally inadequate indigent defense system

The ACLU of Nevada has sued the state, alleging that indigent defense in rural counties is so inadequate—and so poorly overseen by state authorities—that the defense provided is inadequate  under the Sixth Amendment.  The ABA Journal has the story here.

Sunday, November 5, 2017

Justice Department asks Supreme Court to consider discipline for ACLU lawyers in abortion case

You have probably read or heard about the story of the 17 year old detainee who was seeking to get an abortion while in custody.  After the government refused to allow her to leave the shelter where she was being held in custody, a ruling by the full U.S. Court of Appeals for the District of Columbia Circuit cleared the way for the abortion.

The case has not ended however, since it is being reported now that the Department of Justice has filed a petition before the Supreme Court in which it is asking the justices to vacate the D.C. Circuit’s ruling.  This would mean that the decision would no longer serve as legal precedent.

More interestingly for readers of this blog, the government is also suggesting that the justices should sanction the woman's attorneys for misconduct that, the government argues, thwarted it from seeking Supreme Court review of the decision in the first place.  You can read more about this development in the SCotUS blog here.

According to the ABA Journal online, ACLU legal director David Cole responded to the government filing in a statement that states: “This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said. “Now, because they were unable to stop her, they are raising baseless questions about our conduct. Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”

Virginia might soon become the next state to hold participating in Avvo Legal Services is unethical

Readers of this blog know that I have written extensively on the issues related to Avvo Legal Services.  You can go here and scroll down to see all my posts and links to some of my articles.  And, it is no secret that I have been critical of Avvo's model from the beginning, arguing that it places attorneys in a position to violate several rules of professional conduct.

For this reason, I have not been surprised to see that ethics committees in Ohio, Pennsylvania, South Carolina, New Jersey, New York and, most recently, Utah have issued opinions holding that it would be unethical to participate in Avvo Legal Services.  Florida, and North Carolina are considering the question. Of these, only North Carolina is reportedly considering holding that participating in Avvo Legal Services would be OK, but it is also considering amending the rules -- which begs the question, if is OK to participate why would you need to amend the rules to allow it?  But that is a different conversation...

Today's post is to announce the latest addition to the list of opinions holding that participating in Avvo Legal Services would violate current rules.

As reported in the Lawyer Ethics Alert Blog, just over a week ago, the Virginia State Bar voted to approve a draft ethics opinion holding that a lawyer’s participation in services such as Avvo's would violate the Virginia Rules of Professional Conduct.  Like most other opinions on the subject, it does not refer to Avvo by name but given the description of the services it addresses it is pretty clear the opinion relates to Avvo Legal Services.

Not surprisingly, the opinion reaches the same conclusions reached in the literature and other opinions, namely that participating in Avvo Legal Services violates rules related to sharing fees with non-lawyers, paying for referrals, duties to safeguard client property, and duties related to trust accounts including the duty to refund unearned portions of a fee.

Having said that, the opinion states lawyers could participate in the service if some of the conditions are changed.  Doing so, however, would change Avvo's terms and it is not clear that Avvo would want to agree to change its business model.

The opinion (which is available here) will now go before the Virginia Supreme Court for approval.

In light of so many opinions holding against Avvo's service, I have often suggested Avvo is going about its plan the wrong way.  Rather than arguing that the rules should be interpreted to say something they don't, or, worse, that they should be ignored, or continue to advance weak legal arguments, Avvo should advocate for changes in the rules.

Take a look at the position Avvo took in relation to the Virginia opinion (here) and note what they don't do.  They don't even try to address the substantive/legal arguments related to the violations of the rules.  They essentially say the opinion is bad because it does not allow Avvo to do what it wants.  The argument is essentially that what Avvo wants is good, and, thus, preventing it is bad.  Yet, the problem is that even if what Avvo wants is good, it leads to violations of the rules.  The solution can't be to ignore the rules.  The solution has to be to change the way Avvo wants to do what it wants to do so it does not violate the rules or to change the rules. 

What Avvo does now puts lawyers in a position to violate the rules.  Arguing that it doesn't is going nowhere fast.  So, why doesn't Avvo change course and try to present arguments for changing the rules to suggest a new approach would be better for the profession, for consumers and for society in general?  To its credit, Avvo seems to be trying this approach in North Carolina and maybe it is just waiting to see if it works there as a "test case" before trying it elsewhere.

I have argued for this change in tactics before and I am happy to report I am not alone in this view.  Brian Faughnan (of Faughnan on Ethics) has recently published "an open letter" to Avvo arguing the same point.