Two recent cases illustrate basic principle of lawyer accounting: if the client overpays, you can't pocket the money!

Suppose you go to a store and pay with a $10 bill, but thinking you paid with a $20, the cashier gives you more change than you deserve. Would you correct the error?   You don't need to tell me... but let me tell you this, if you are a lawyer and the cashier is a client paying for your bill, you better....!

Two separate cases reported this month in the Legal Profession blog deal with the issue.  In the first one, Iowa Supreme Court Attorney Disciplinary Board v. Ries, Jr, an attorney was suspended for not refunding the clients after it was pointed out they had paid the bill twice.  The attorney charged the client a $500 retainer but, after the representation ended, the final invoice failed to credit the $500 that had already been paid. The attorney then did not pay attention to the client's concerns when the client discovered the error and complained the attorney had been paid $500 more than he was entitled to.

In the second case, the Minnesota Supreme Court imposed an indefinite suspension of no less than two years to an attorney who had engaged in a pattern of misrepresentations, failed to maintain a trust account and failed to pay an arbitration award.  Among other things, at one point the attorney was to receive an initial retainer payment of $1,000. She mistakenly was paid $5,000 which she did not place in escrow and did not refund when she was confronted with the error and discharged.

More comments on prosecutorial misconduct, this time from Australia

Here is an interesting post from the Australian Professional Liability Blog on prosecutorial obligations. Although the language used is different in many ways, the underlying duties discussed are very similar to those in the rules of conduct in most states, the ABA Model Rules and the Restatement.  I did find interesting that more than one source mentions that prosecutors have a duty to help the court "arrive at the truth," something I would not say since due process, rather that "the truth" seems to be the main goal in our system.  As a famous movie quote goes, "the truth is we don't know what the truth is."  (The first person who can name the movie gets a prize.)

Rather than mention a duty to help find the truth, the text of the comment to ABA Model Rule 3.8 states:  "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.. . . "

Prosecutor objects to disclosure of report on prosecutorial misconduct in Ted Stevens case; asks DC Circuit Court to review the order

Last month I reported that, finally, U.S. District Judge Emmet Sullivan ordered the release of the report on prosecutorial misconduct in the Ted Stevens case.  The scheduled date for the release of the report is March 15.  Go here, here, here and here for more on the story.  However, the Blog of the Legal Times is reporting today (here) that one of the prosecutors in the Stevens case has filed a notice indicating he wants the U.S. Court of Appeals for the D.C. Circuit to examine whether the report should be released to the public.  Reportedly, Judge Sullivan has stated that keeping the report confidential “would be a disservice and an injustice.”  Because I think that courts should always do as much as they can to expose and punish prosecutorial misconduct, I agree.

Chief Judge of the US District Court of Montana caught sending racist joke by email

Richard Cebull, Chief Judge of the U.S. District Court for the District of Montana, has acknowledged that he forwarded a racist email to several friends.  Judge Cebull has replied to the controversy saying the e-mail was not meant to be a racist comment but an attack on President Obama. Hmm.  Let me see if I understand.  It is not racist if it is an offensive attack on one black person but not on all black people.   Another problem with this, if you read the message you will see the comment is not on Obama but on his mother.  The judge also says the message was meant to be private. I see, now.  So I guess that according to his own logic, the judge is not a racist.  He's just an idiot.  Professor Jonathan Turley is more eloquent than I on the issue here.  He also has a copy of the e-mail message itself.

For more on the story go to the Billings Gazette, the Great Falls Tribune and the Wall Street Journal law blog (which provided these links).

Second Circuit Upholds Rules That Prevent Online Graduates From Taking N.Y. Bar Exam

In a summary order in a case called Bazadier v. McAlary, (available here) the Court of Appeals for the Second Circuit has held that the state of New York has the right to keep graduates of online law schools from taking the state's bar examination.  The court endorsed the conclusion of the district court that the admissions rules at issue do not violate applicants' rights to equal protection or freedom of association.  For more information check out the ABA/BNA Lawyers' Manual on Professional Responsbility (28 Law. Man. Prof. Conduct 117).

How not to practice law: lie to the disciplinary board in an attempt to cover your misconduct - third time this week!

Just a few days ago I posted two notes about cases in which the attorneys lied to the disciplinary board in an attempt to cover their misconduct.  As reported in the Legal Profession blog, here is a third, and it may be the "best" one yet.  In this case, called In the matter of Joan Palmer Davis, the Georgia Supreme Court disbarred the attorney primarily for neglecting a case. Among other things, the attorney failed to appear before the court for a hearing and the case was dismissed.  When questioned about the incident, the attorney claimed she did go to the hearing.  Really?  I am sorry, but how smart do you think it is to lie about whether you were present at a hearing or a meeting of some sort, where there probably is an actual written record and witnesses who could be called to corroborate the allegation - in some cases this could include the judge!  Didn't think that one though, did you!?  In fact, at the disciplinary hearing, four people testified that the lawyer never appeared at the hearing.

You can read the opinion here.

ABA Commission's proposed amendments to the Model Rules

Prof. Andrew Perlman, reporter for the ABA Commission that is preparing the next round of proposed amendments to the Model Rules, has posted a very informative note with links to lots of information on the most recent proposals here.  Some of the proposed changes are minor, others are important.  They include, among others, changes to the rules on competence, confidentiality, communication, and many issues involving new technologies.

How not to practice law: lie to the disciplinary board in an attempt to cover your misconduct -- UPDATED

We have seen this one before, but it never ceases to amaze me.  The Legal Profession blog is reporting that the Maryland Court of Appeals has disbarred an attorney, whose most serious violation was that she submitted false documents in defense of the disciplinary charges.  The case is called Attorney Grievance Commission v. Payer and it is available here.

UPDATE 2-24-12:  The Legal Profession blog is reporting yet another case of an attorney making things worse by lying during disciplinary proceedings.   In this case, the attorney engaged in misconduct in connection with a real estate transaction and compounded the problem by testifying falsely in the ensuing bar proceedings.  What ts different about this case is that the attorney was only suspended for eighteen months rather than disbarred.  The case is called Matter of Gurevich and it is available here.

Yet another opinion from Washington DC on the concept of "moral turpitude"

In a new case, reported today in the Legal Profession blog, the same court (District of Columbia Court of Appeals) has concluded that a conviction for federal witness tampering involves moral turpitude per se and thus requires disbarment.  The case is called In re Walter Blair and it is available here. 

As you may remember, this is not the first time I have mentioned the DC courts' view on what constitutes moral turpitude.  Last September I discussed a case from Washington DC interpreting the notion of moral turpitude in an attempt to decide the proper punishment for misconduct.  See here.  In that case, the Disciplinary Board, Bar Counsel and the courts disagreed on whether the attorney had engaged in conduct that involved moral turpitude.  The courts concluded that it did.  Bar Counsel disagreed.  I agreed with Bar Counsel and think the case was wrongly decided.

ABA Commission on Ethics 20/20 Releases Nearly Final Drafts of Proposals

Prof. Andrew Perlman, one of the members of the ABA Commission on Ethics 20/20, has posted an announcement in the Legal Ethics Forum stating that the Commission has released nearly final drafts of the proposals that the ABA House of Delegates is expected to consider at its August 2012 meeting.  The drafts cover issues relating to technology and confidentiality, technology and client development, outsourcing, the establishment of an office in another jurisdiction while admission in that jurisdiction is pending, admission by motion, and the disclosure of confidential information to detect conflicts of interest.  A cover memo describing the newest drafts and how they differ from prior drafts is here. The deadline for comments on these new draft proposals is April 2, 2012.  The Commission plans to finalize these proposals shortly thereafter, so if you would like to comment, please do so before the deadline by sending an email to the Commission's Senior Research Paralegal, Natalia Vera, at natalia.vera@americanbar.org.