Friday, February 27, 2015

California Bar issues opinion on whether attorney can refuse to disclose confidential information in support of motion to withdraw from representation

The California bar's ethics committee recently issued an opinion (Formal Op. 2015-192) attempting to clarify whether an attorney seeking to withdraw from a litigation for ethical reasons might have grounds for resisting a court order that would require the lawyer to disclose client confidences to a judge who wants more information before ruling on the motion.  Although it admits there is no on-point guidance in California, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive.  You can read the opinion here.  The summary reads as follows:
An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney - client relationship. In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera. To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders. Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed. Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client.

Thursday, February 19, 2015

Podcast on lawyers and modern technology

The Legal Talk Network has a new podcast on lawyers and modern technology. You can listen to it by clicking on the play button below. If you can't see the button, you can go here.

Here is the description of the program:

As we’ve heard time and time again, many lawyers are averse to becoming knowledgeable about modern technology. Older attorneys often do not want to learn a computer-based management tool and feel as though they can hire someone to manage the security and encryption of their sensitive information. Often, even having a young lawyer in the firm can seem like a solution since they will most likely have grown up with a certain level of technology knowledge. But none of these are valid excuses to a proper level of technological education. The luddite lawyers need to face the ethical implications of their ignorance.

In this episode of The Digital Edge, Sharon Nelson and Jim Calloway interview lawyer and legal technology blogger Sam Glover about when technology became an issue for attorneys, how they can get in trouble due to ignorance, and what all attorneys need to know about hackers, cloud services, and the resulting ethical duties. First, Glover explains that lawyers are getting into trouble in the courtroom by not knowing about how technologies like Twitter work... Concerning cyber security, Glover discusses the many reasons lawyers cannot simply outsource technology knowledge. ... Simply put, you cannot avoid technology as a lawyer anymore. There are courses, blogs, webinars, books, and many other ways to become educated about legal technology.

Wednesday, February 18, 2015

Cert petition before the Supreme Court on whether exonerated defendant can sue New Orleans parish prosecutor's office, ... again

A new case has reached the Supreme Court on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages.  The case is called Truvia v. Connick and you can read the certiorari petition here.  (And, before you ask, yes, that is the same Harry Connick, whose office was involved in Connick v. Thompson and Smith v. Cain).

As you probably remember, in Connick v. Thompson, the defendant conceded that the prosecutor in the case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before his conviction was reversed. He sued and won a multi-million dollar verdict, but the Supreme Court, in a five-four opinion by Justice Thomas, reversed holding that there was no evidence of a deliberate indifference to the rights of persons or a pattern of similar constitutional violations.  The dissenters in the case argued the evidence was sufficient stating that "the evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record ...  reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical."  (It is now known that the DA's office’s failure to disclose exculpatory evidence led to the exoneration of at least twelve people since 1990.)

A year later, after listening to the oral arguments in Smith v. Cain, during which the justices discussed the history of misconduct at the same prosecutors' office, maybe the Court would have been ready to accept the fact that there was a pattern of misconduct.  However, that was not at issue in that case and the Court simply (and almost unanimously, Justice Thomas being the only dissenter) reversed the conviction because of the prosecutor's misconduct.

The new petition before the court involves two men who were exonerated after 27 years behind bars. After their convictions were vacated, the filed a complaint asserting claims under 42 U.S.C. § 1983 for constitutional violations arising from the prosecutors misconduct in not disclosing exculpatory evidence.  They argued (and presented evidence to support the argument) that the Orleans Parish District Attorney’s office had a policy and custom of withholding exculpatory evidence.  The lower court, however, ruled there was no triable issue of fact.  On appeal, the Court of Appeals for the Fifth Circuit affirmed.

I hope the Court grants the petition because it would give the Court the opportunity to define the level of evidence needed to support a claim for civil rights violations by prosecutors due to violation of the duty to disclose exculpatory evidence.  As the petitioners argue in their petition, this is an issue of national importance. 

In Connick v. Thompson the Court held that the single incident of prosecutorial misconduct in withholding exculpatory evidence was not sufficient to create local government liability.  The Court's conclusion was based on the finding that the plaintiff “did not prove a pattern of similar violations that would establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” The Court, however, did not indicate what would be sufficient to establish a "pattern of violations" sufficient for a finding of a “policy” or “custom” with regard to the failure to turn over exculpatory evidence. This is the question the Court will have a chance to answer if it grants review.

Also, as I have argued many many times in this blog, I think courts do not do enough to discourage misconduct on the part of prosecutors.  Recognizing a standard that could open the door to claims by exonerated defendants who suffer because of such misconduct would hopefully have a deterrent effect on what Judge Alex Kozinski recently called an “epidemic” of misconduct. 

Saturday, February 14, 2015

Illinois Appelate court on whether there is a duty to disclose death of client during settlement negotiations

About ten days ago, the Illinois appellate court issued a good opinion that deals with several issues we cover in class. The first one is whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation. The case is called Robison v. Orthotic & Prosthetic Lab, Inc and it is available here.

In this case, the plaintiff, Randy Robison, filed a product liability action against the defendant, Orthotic & Prosthetic Lab, Inc. in 2008.   In January, 2013, while the case was still ongoing, the plaintiff died but the plaintiff’s lawyers did not alert the court or the attorneys for the defendant.

In September 2013, the attorneys for both sides began settlement negotiations and reached an agreement on September 24. To finalize it, the attorney for the plaintiff sent an e-mail to the attorney for the defendant in which he stated “My client has instructed me to accept . . . in full and final settlement of this matter. Please provide an appropriate release and I will present it to my client for review and approval.”

The plaintiff's lawyer did not notify the defendant's lawyer of the plaintiff's death until after the defendant had submitted the settlement agreement, and he did so when he sent an amended version of the proposed release in which he asked the defendant's lawyer to agree to substituting the plaintiff's son as plaintiff in the case.  The defendant's lawyer refused and asked how come he had not been informed of the plaintiff's death, to which the plaintiff's lawyer replied that he had researched the issue and determined that he had no affirmative duty to disclose the information because it was against his clients' interests and he had a duty to protect his clients' interests within the bounds of the rules of professional responsibility.

The defendant refused to follow through on the settlement agreement claiming it was not valid, and the plaintiff moved to enforce the settlement.  Eventually, the lower court eventually granted the motion and the defendant appealed.

In a short and well written opinion, the Court of Appeals reversed holding that the agreement was not valid and suggesting that the conduct of the attorney for the plaintiff in not disclosing the death of the client was unethical.  Interestingly, it also suggested that the conduct of the defendant's lawyer was unethical in not reporting the conduct of the plaintiff's lawyer.  Here are the most important paragraphs of the opinion:
... The defendant further argued that the settlement was invalid because the death of the plaintiff was a material fact that had been concealed from the defendant prior to and during settlement negotiations. ...


Settlement negotiations commenced in September 2013, and an agreement was ostensibly reached on September 24, 2013. The defendant, however, had no knowledge about the plaintiff's death or the appointment of a personal representative throughout the period of settlement negotiations. [These facts were not disclosed until] weeks after the settlement was reached and months after the plaintiff's death. [The plaintiff's lawyer acknowledged that] the disclosure of the plaintiff's death would have adversely impacted the settlement value of the case. He stated that he believed that the decision to withhold the information was in his clients' best interest and was in keeping with the rules of professional responsibility. We strongly disagree. We find that the arguments expressed by [the plaintiff's lawyer] are specious and incredible, and we are concerned about his professional judgment in this case. In failing to disclose the fact of the plaintiff's death, [the plaintiffs lawyer] intentionally concealed a material fact that would have reduced the overall value of the claim for damages. In addition, and equally troubling, [he] led the defendant to believe that he had authority to negotiate a settlement of the litigation on behalf of the party plaintiff, when the action was without a plaintiff as the plaintiff had died and a representative had not been substituted. Given [these] intentional misrepresentations and material omissions prior to and during the settlement negotiations, we conclude that the settlement agreement is invalid and unenforceable, and that the trial court erred in granting the motion to enforce it. 
In my opinion, this is the correct approach to the issue, but it needs to be explained a bit further.  Although it is well known that a lawyer does not have a general duty to volunteer adverse facts to an opponent in litigation,  Rule 4.1 has been interpreted to imply an exception which requires the disclosure of a client's death.  The most cited case holding this proposition is Virzi v. Grand Trunk, 571 F. Supp. 507 (E.D. Mich. 1983), which approaches the issue from the perspective of a duty to the court because in that case the attorney did not disclose the death of the client until after the court had entered an order. However, the court does go on to say that just as the lawyer owes a duty to the court, he or she also owes the same duty to opposing counsel.  Based on this view, at least two courts (one in Ohio and one in Kentucky) have imposed sanctions on attorneys for failing to disclose their client's death. In Robinson, the court did not discuss rule 4.1 but emphasized the attorney's general duty of honesty under rule 8.4, which is presumably owed to everyone.

Interestingly, the court did not stop there and also took up the fact that counsel for the defendant did not report the misconduct under rule 8.3:
Finally, we believe that we have a profound responsibility to comment on the conduct of the attorneys in this case.  ... Rule 8.4(c) of the RPC states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. ...   Rule 8.3 requires a lawyer to report unprivileged knowledge of misconduct involving fraud, dishonesty, or deceit, or misrepresentation by another lawyer to the Illinois Attorney Registration and Disciplinary Commission (ARDC). ...

In this case, we believe that the material omissions and misrepresentations ... constitute serious violations of Rule 8.4. We also believe that defense counsel possessed sufficient knowledge to trigger a duty to report [the plaintiff's lawyer's] misconduct to the ARDC, and that the failure to report the misconduct constitutes a potential violation of Rule 8.3.

Thursday, February 5, 2015

So you thought that the attorney-client relationship is a fiduciary relationship, right? Not in Delaware, apparently!

Raise your hand if you think the attorney client relationship is a fiduciary relationship.  Wait, not all hands are up?  How come?  Yesterday, a judge of the Delaware Superior Court for Sussex County issued an opinion in a civil case which concludes the notion of a fiduciary relationship is not what we have always been told.  The case is called Dickerson v. Murray and you can read the opinion here.

In this case, the plaintiffs hired a lawyer to represent them in a transaction.  Then, according to the plaintiffs, they suffered an injury as a result of the fact that the lawyer had a conflict of interest.  They sued for malpractice, but the complaint included a separate count for "conflict of interest." The judge found that the plaintiffs could support the cause of action for negligence, but dismissed the other cause of action.

The court dismissed the second count of the complaint because, according to the judge, “merely establishing an attorney-client relationship does not de facto give rise to fiduciary duties.”

That is news to me!

Pick any Professional Responsibility book and somewhere in it you will find an explanation of the basic principles of the attorney-client relationship.  And somewhere within that explanation you will find a statement that, in one way or another, defines that relationship as a fiduciary relationship.  Take for example Gillers, Regulation of the Legal Profession, page 2: "The lawyer's relationship to the client is fiduciary..." or Rotunda & Dzienkowski, Professional Responsibility, A Student's Guide, page 42:  "Lawyers are fiduciaries of their clients" and "[m]uch of the law of ethics is derived from, or related to, the law of fiduciaries." (emphasis in the original).

Yet, incredibly, the judge in this case concluded that “[a]n attorney must act in some capacity beyond the mere provision of legal services to owe actionable fiduciary duties” and the plaintiff “failed to allege factual contentions sufficient to prove the existence of a special trust, or relationship to substantiate a breach of fiduciary duty claim.”

The only factual allegation the plaintiff needs to allege to support the claim is that the defendant was the plaintiff’s lawyer, period.  The attorney-client relationship is, by definition, one based on special trust.  Again, citing Rotunda & Dzienkowski, "Clients have every right to expect trust from their lawyers, who are expected to act for the benefit of their principals, their clients."

The second count of the complaint was obviously argued poorly by calling it simply "conflict of interest" instead of arguing it as a separate claim for breach of fiduciary duty, but the court understood the allegation as such.  Thus, the problem is not that the judge did not understand the claim; the problem is that the judge does not understand the basis of an attorney-client relationship.

As the court put it, "[i]n order to prevail on a breach of fiduciary duty action, unlike a negligence claim, Plaintiff must demonstrate the attorney-client relationship between the Defendants and Plaintiff was fiduciary in nature."  Yet, one would think that a plaintiff would not have to "demonstrate" this.  It just is. 

Thanks to the Legal Profession blog for the link.

Wednesday, February 4, 2015

Court of Appeals for the Third Circuit declares unconstitutional NJ rule banning use of quotes from court opinions

Back in 2012, in response to a complaint filed by a judge, the New Jersey Supreme Court approved a new ruled that stated that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The attorney whose ad had initiated the whole discussion on the issue challenged the rule in federal court and the Court of Appeals for the Third Circuit recently declared the rule unconstitutional.  I agree with the result.  Lawyer Ethics Alerts Blog has a good summary of the case here.

Wednesday, January 28, 2015

Florida Bar Ethics Committee issues opinion on whether an attorney can advise clients to "clean up" a social media page before starting litigation

Legal Ethics in Motion is reporting that the Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations when advising a client to “clean up” the client’s social media pages before litigation is filed.  The opinion is only three pages long and you can read it here.   Agreeing with an opinion by the New York County Lawyers Association published in 2013, the opinion concludes as follows:
In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.

Friday, January 23, 2015

Yet another conviction reversed because of improper use of PowerPoint by prosecutor

Yesterday I wrote about cases on improper arguments by prosecutors, and in particular about the improper use of PowerPoint slide shows.   Amazingly, today, the Marshall Project is reporting on yet another case in which an appellate court has reversed a conviction because of improper use of PowerPoint.  According to the story, the prosecutor presented 250 slides to the jury and the court found problems with more than 100 of them. The post has photos of some of the slides.  The case is called State of Washington v. Walker and it is available here.

Wednesday, January 21, 2015

An update on improper arguments, and use of powerpoint, by prosecutors

Long time readers of this blog will remember the many cases I have reported over the years where courts had to decided whether to reverse a conviction because of improper arguments by prosecutors (usually during closing arguments).  Many of these cases involved prosecutors making references to facts not in evidence, expressing their personal opinions or using inflammatory rhetoric.  Some cases involved prosecutors being more creative, like the case where a prosecutor performed magic tricks for the jury and the one where a prosecutor used a big jigsaw puzzle with one piece missing to suggest to the jury that they could "see the picture" (or "know the truth") even though they did not have all the pieces of the puzzle. Sometimes courts have reversed the convictions and sometimes they have criticized the conduct but not reversed the conviction.

The Legal Profession blog has a note on the most recent example here.  It involves a case where the conviction (for the murder of four police officers) was reversed because the prosecutor misstated the law to the jury five times during closing argument, and then again during the rebuttal argument.  Although the court easily finds that the prosecutor's statements were improper, and at one point states that "the misconduct by the State is particularly egregious",  it does not attempt to determine whether they were the result of negligence, incompetence or intent and does not make a recommendation for sanctions.  Once again, as I have criticized time and time again, the court does nothing to deter the type "egregious" conduct that it complains about. 

Interestingly, there was another aspect of the prosecutor's presentation to the jury that the court commented on.  The prosecutor used a "slide show" (presumably something like PowerPoint) in which it showed the jury the improper statements. 

This is interesting because the use of PowerPoint has attracted some attention lately. The Marshall Project has an interesting post on this new trend.  According to the article,
At least 10 times in the last two years, US courts have reversed a criminal conviction because prosecutors violated the rules of fair argument with PowerPoint. In even more cases, an appellate court has taken note of such misconduct while upholding the conviction anyway or while reversing on other grounds ... . Legal watchdogs have long asserted that prosecutors have plenty of ways to quietly put their thumb on the scales of justice ... Now they can add another category: prosecution by PowerPoint. “It’s the classic ‘A picture is worth a thousand words,’” said Eric Broman, a Seattle attorney who focuses on criminal appeals. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”
The article explains how PowerPoint has been used in many of these cases and includes photos of the more problematic slides.  You can read the full article here.

Wednesday, January 14, 2015

Former prosecutor sues DA's office claiming he was fired for refusing to act unethically

A man who worked for several years as a prosecutor in Corpus Christi, Texas is suing the District Attorney's office arguing that he was fired because he refused to act unethically. 

According to this story aired in Action News 10 and published here, the prosecutor says he lost his job for following his duty under the law.  According to the complaint (as explained in the story), when the prosecutor uncovered a witness who had the potential to help someone he was prosecuting, his bosses told him not to share the information with the other side.  Instead, the prosecutor called the State Bar of Texas for an opinion which confirmed he had a duty to disclose the information.  Following his duty, however, the prosecutor told his supervisors he was going to disclose the witness and was fired the morning of the trial.