Saturday, October 13, 2018

Massachusetts Supreme Court orders dismissal of thousands of cases because of prosecutorial misconduct related to state run evidence lab misconduct

Thousands of drug cases tied to a state-run Amherst drug lab will be dismissed, and the state attorney general's office will bear the costs, the Massachusetts Supreme Judicial Court ruled Thursday. The decision is the result of the court's finding that prosecutors withheld evidence about a state chemist's wrongdoing.  The Legal Profession blog has the story here.

Tuesday, October 9, 2018

Utah launches online dispute resolution program for small claims court

In September 2018, Utah launched a small claims court online dispute resolution (ODR) system which has been designed to provide “simple, quick, inexpensive and easily accessible justice” that includes “individualized assistance and information that is accessible across a multitude of electronic platforms.”

Online dispute resolution systems (some of which are fully automated - meaning there are no humans involved in the process) are not a new concept but it has been mostly used in the private sector (think eBay, for example).  Utah appears to be the first U.S. jurisdiction to launch a system for actual legal disputes, in this case small claims disputes, which currently include claims up to $11,000.

As Prof Laurel Terry explains, "the implications of this development are profound."  You can read her comment here.

Monday, October 8, 2018

Texas Opinion: no interviewing potential experts in order to create conflict -- UPDATED

You may have heard stories about divorce clients "interviewing" good divorce lawyers so that their spouses would not be able to hire any of the lawyers so interviewed...

Well, on a similar note, the Professional Ethics Committee of the Texas State Bar was recently asked the following question:  "Do the Texas Disciplinary Rules of Professional Conduct prohibit a lawyer from retaining an expert or intentionally disclosing confidential information to a prospective expert when the lawyer has no substantial purpose other than to attempt to disqualify or otherwise prevent the expert from being used by an opposing party including testifying on the opposing party’s behalf?"

And, last month, the Committee issued its answer in Opinion No 676:  Yes, the rules prohibit such conduct.

As Karen Rubin, of The Law for Lawyers Today, summarizes it, "You can’t interview potential expert witnesses and share confidential information with them solely to taint them with a conflict that would prevent the experts from working for the other side."   Her full comment on the Opinion is available here.

Over at Ethical Grounds, Michael Kennedy offers more analysis on the opinion.

Monday, October 1, 2018

"Road rage" incident escalates into a disciplinary sanction, one year suspension

As a reminder that lawyers can be sanctioned for conduct outside the practice of law, take a look at a recent case in which the Ohio Supreme Court suspended a lawyer for his conduct related to an incident with a bicyclist that led to a subsequent scuffle and more misconduct.  In a unanimous opinion, the Court suspended the lawyer for one year with six months stayed.

In addition, the more interesting part of the case is not the fact that the original conduct was an incident outside the practice of law but the discussion about what level of sanction should be imposed.  The Board of Professional Conduct had recommended a two year suspension.

The Legal Profession Blog has more details, but the basic story is this:  while driving his car, believing that a bicyclist had bumped into his car, the attorney in question followed the cyclist, drove in front of him and slammed on the breaks causing the cyclist to crash into the back of the car.  After that, the lawyer got into what was described as a "scuffle" with the cyclist and a witness who had started to take a video with his cellphone.  Eventually, the lawyer was charged with a misdemeanor, skipped his court date, was arrested, lied about the incident and so on. 

The lawyer, in a way, failed to follow the number one rule when you find yourself in a hole:  "stop digging!"  He continued to make things worse in different ways and ended up facing a two year suspension. He appealed the two year suspension, though, and was lucky to get it reduced to 1 year with the last 6 months stayed, which means in practical terms he could go back to practice in 6 months. 

You can read the opinion here

More interestingly, particularly if you are interested in the issue of how courts decide what is the proper level of sanction to impose for particular types of conduct, you can watch the video of the oral argument, during which the lawyers and justices discuss the lawyer's conduct, and the basis for the sanction.

Sunday, September 30, 2018

Avvo fined by NY Attorney General's Office

As you probably know by now, Avvo Legal Services shut down earlier this year, but Avvo itself did not.  The controversial original directory and rating service is still in operation.  I say "controversial" because since early on there have been lawsuits and claims that its ratings system is misleading and that it favors attorneys that pay to join Avvo in order to build their profile.

Now comes news that Avvo has reached an agreement with the New York Attorney General’s Office according to which Avvo will pay a $50,000 fine and will state on its website that attorneys who "claim" their profile (presumably by paying a fee to Avvo) receive higher rankings, among other things.  Also, Avvo will no longer be able to claim that its ratings are “unbiased.”

The ABA Journal online has more on the story here.

Wednesday, September 19, 2018

ABA issues new Formal Opinion

Earlier today, the ABA Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (Number 482) on “Ethical Obligations Related to Disasters,” which is not about what happens when a lawyer makes a huge disastrous mistake.

The Opinion is essentially a reminder to lawyers that they need to be aware of their duties when their practice is affected (or is likely to be affected in the future) by natural disasters. 

As the opinion explains in more detail, extreme weather events such as hurricanes, floods, tornadoes, and fires have the potential to destroy property or cause the long-term loss of power.  For this reason, lawyers must be prepared to deal with disasters.  Thus, lawyers have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruptions, and keep clients informed about how to contact the lawyers (or their successor counsel).  The opinion concludes that “by proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

You can read the full opinion here.

Tuesday, September 18, 2018

How not to practice law: threaten another lawyer with a gun during a deposition

I am sure that there are lots of stories of lawyers threatening to fight during depositions; and, unfortunately even more of lawyers using foul and insulting language.  (Here is an example caught on video).  But today I bring you a story that combines both and takes it a step further.

As reported in the Legal Profession Blog, the misconduct involved a lawyer's behavior during a deposition at his office described as follows:
"When questioning the deponent, [the laywer] used vulgarities, called the deponent derogatory names, aggressively interrupted the deponent and opposing counsel, answered questions for the deponent, and repeatedly made inappropriate statements on the record. [The lawyer] went on to ask the deponent if he was "ready for it" while positioning his hand near his hip. The deponent briefly left the room, but when he returned [the lawyer] displayed a firearm he had holstered on his hip to the deponent and opposing counsel.]
Based on the record, the court called the lawyer's behavior "appalling" and found that there was substantial evidence to support a violation of RPC 8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice). 

The lawyer was suspended for six months and a day.  Do you think the penalty is adequate? 

You can read more about the case here and here.

Monday, September 17, 2018

Comment on case imposing sanctions on prosecutor

About two weeks ago I reported that the Indiana Supreme Court had imposed sanctions on a prosecutor for failing to disclose exculpatory evidence.  See here.

A few days later, Michael Kennedy, of Ethical Grounds, posted a more detailed comment on the case and its implications.  You should take a look at it here.

Friday, September 14, 2018

Louisiana Supreme Court reverses conviction applying McCoy v Louisiana (in which the US Supreme Court had reversed the Louisiana Supreme Court)

As you may recall, back in May the US Supreme Court issued its opinion in McCoy v Louisiana, an eagerly awaited case on whether an attorney has the authority to concede a client's guilt in order to seek leniency at sentencing.  The Court held that the attorney did not have such authority and that because he acted against the client's will, the conduct constituted a reversible error.  For reasons I discussed elsewhere, I consider McCoy to be only a partial victory, but that is another story you can read about here.

In McCoy, the Louisiana Supreme Court had held that the attorney's concession of guilt had been a tactical decision within his authority; but the US Supreme Court held that type of decision related to the objective of the representation and therefore belonged to the client and reversed.

Now comes news that the Louisiana Supreme Court learned the lesson and has reversed a conviction in a new case that presented the same issue.  The case is called Louisiana v Horn and you can read the opinion here.

The Legal Profession blog has a summary here.

Monday, September 10, 2018

Short comment on Judge Kavanaugh and the Duty of Candor

Over at the Legal Ethics Forum, Prof. Milan Markovic (Texas A&M) has posted a short comment on whether Judge Kavanaugh i) had a duty to be candid in his nomination hearings and ii) he might have violated this duty.   You can read it here.