Thursday, April 10, 2014

Article on the need for a duty of candor to clients

Here is a short article arguing that the Model Rules should have a rule directly requiring honesty to clients.

Thanks to the Legal Ethics Blog for the link

What is the best predictor of happiness among lawyers?

The Smithsonian Magazine has a review of an article that attempts to determine the factors that go into making a lawyer happy.  According to the article it was not the prestigious lawyers, or those who did the best, or even those who made the most money who were the happiest. It was actually those who had the lowest incomes and the lowest grades in law school—most of whom were public service lawyers.  The abstract of the study reads as follows:
Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

Judge reprimanded for sexist remarks

The ABA is reporting that a former New Hampshire judge has been reprimanded for comments he made at a meeting with public defenders.  Reportedly he said that the worsening public regard for the legal profession was due in part to the proliferation of women lawyers.   According to public defenders who were present at the meeting, the judge said the legal profession risks losing respect because so many more women are becoming lawyers, that doctors are not respected in Russia because medicine is a female-dominated profession and that the teaching profession has been harmed because females are choosing careers in law over education.  The ABA Journal has more details and links to more information on the story here.

Sunday, April 6, 2014

Competence means more than knowing the law

I always make a point of reminding my students that being competent includes understanding the day to day operation of law practice and the management of an office.  A recent case from Nebraska illustrates this.  In this case, State of Nebraska v. Sundvold, the Nebraska Supreme Court suspended an attorney for three years followed by probation for two years on reinstatement in part because he was not equipped to manage his law practice.  The attorney had worked in-house for an insurance company before entering private practice and proved not to be ready for it.  He did not have any experience in the financial aspects of the the practice of law. He had never negotiated a fee, handled client funds, drafted a contract for the provision of legal services, worked with a billing system or utilized a trust account.  For more, go to the Legal Profession blog here.

How not to practice law: post a video of your client buying drugs

The Illinois Attorney Registration and Disciplinary Commission recently recommended a five month suspension for a criminal defense lawyer after he posted a video of his client buying drugs on YouTube and then linked it to his Facebook page.  The attorney believed the video of the undercover drug sale would exonerate his client because he claimed it showed police planting drugs on the client. However, when viewed more carefully, it appeared the video actually showed the client purchasing drugs.  As a result, his client pled guilty and was sentenced to probation.

The Review Board found the attorney violated Rule 1.6(a) because he revealed information relating to the representation of a client without the informed consent of his client, Rule 1.4(a)(2) because he failed to reasonably consult with his client about the means by which the client’s objectives were to be accomplished and Rule 3.6(a) because he made extrajudicial statements that he knew or reasonably should have known would be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding.

(h/t Legal Ethics in Motion)

Saturday, April 5, 2014

Board of Governors of Florida Bar proposes changes to the rules; recognizes non refundable flat fees

On March 28, the Board of Governors of the Florida Bar approved a number of revisions to the state's rules on trust accounts. Among other things, the new rules would recognize that flat fees can be non refundable. The proposed revisions would amend Rule 4-1.5 to explicitly state that nonrefundable fees are considered earned on receipt and must not be placed in lawyers’ trust account and also providing a definition for retainers, flat fees, and advance fees. Long time readers of this blog will remember that I have posted a number of stories on the confusing state of the law in this area.  See for example, here, here and here.  For more information on the newly proposed changes go here.

Thursday, April 3, 2014

How not to practice law: offer to have your client testify against another defendant ...when the other defendant is also your client

Next week we will begin discussing conflicts of interest in criminal law practice.  Right on cue, the Legal Profession blog is reporting today on a case in which a lawyer was suspended because he had represented both a defendant husband and his cooperating wife in a drug distribution investigation and trial.  The court found the conduct violated both Rule 1.7 and Rule 1.9.

The lawyer was representing the husband while representing the wife who cut a deal in exchange for testimony against the husband.   For this reason, the court held that the lawyer "failed to appreciate the conflicting interests between husband and wife or to explain those conflicts to his clients and pursue the possibility or effectiveness of any waiver." For this reason, the court affirmed the finding that the lawyer had violated Rule 1.7, regardless of whether “actual prejudice” to the husband's defense occurred as a result. The case is called In re Solomon Neuhardt.

Thursday, March 27, 2014

Lawyer convicted for helping client/husband conduct gang activities from prison

A lawyer who years ago got in trouble when she was caught on tape engaging in sexual contact with a client in a room for attorneys to meet with defendants in police custody, has now been convicted after admitting that she had helped her husband, a client whom she married while he was in prison, conduct gang activities from prison by providing money and information to others at his direction.  Go here for more on this story.

Why was this judge not disbarred?

Yesterday, the Michigan Supreme Court issued an opinion (available here) removing from the bench a judge who was in the news some time ago after it was discovered that he "texted" a shirtless photo of himself to a courtroom bailiff and that he had sex in his chambers with a complaining witness in a child-support case.  The court found that (1) the conduct was clearly prejudicial to the administration of justice, (2) that the conduct exposed the legal profession or the court to contempt, censure, or reproach, (3) that the judge engaged in conduct that was contrary to justice, ethics, honesty, or good morals, (4) that he testified falsely under oath, (5) that he failed to maintain high standards of conduct so that the integrity and independence of the judiciary may be preserved, (6) that he failed to avoid all impropriety and appearance of impropriety, (7) that he failed to promote public confidence in the integrity and impartiality of the judiciary, (8) that he allowed sexual relationship to influence his judicial conduct or judgment, (9) that he failed to be faithful to the law, (10) that he engaged in ex parte communications, and (11) that he failed to disqualify himself when he should have.

As a sanction, the court removed the judge from the bench and, if the judge is reelected as a judge in November, suspended him for six years.

Sounds like a pretty substantial suspension; but it really isn't.  Essentially, the sanction is a way to prevent the judge from running for the position again.  Were he to get elected, he would not be allowed to serve because he would be suspended without pay.  But the suspension does not apply if he is not elected.  So what is the judge to do?  Simple.  Not run for re-election and continue to practice law.  Wait. What? Wasn't he suspended?  No.  He was suspended from the bench.  Not from the practice of law.

I don't understand why the sanction was so lenient.  I think the judge should have been disbarred.  Or at the very least, suspended from the practice of law.

UPDATE (3/29/14):  One of my readers e-mailed me to let me know that in Michigan, to disbar a judge removed from office, a separate disciplinary proceeding needs to be filed by the Attorney Grievance Commission.  So, that explains that.  I still would have liked to have seen the court take a stance on the issue, though.  I would have liked to have seen the court say that such a grievance should be filed.  This is not necessary and I assume the Commission might take on the case anyway, but it never hurts to have a state Supreme Court remind lawyers in the jurisdiction that misconduct should not be tolerated.

Illinois Appellate Court imposes sanctions for frivolous appeal

As you know, attorneys have a duty not to pursue frivolous claims, a principle that appears both in the rules of professional conduct and the rules of civil procedure (usually identified as Rule 11).

Today, the Illinois Court of Appeals reminds us that there are other rules that hold the same principle as to appellate practice. In a case called Fraser v. Jackson (available here), the court found a party and their lawyer should be sanctioned for pursuing a frivolous appeal.  Quoting an older case, the court stated
We find that this appeal, viewed as a whole, was frivolous, that it was taken for an improper purpose, and that it was filed specifically to harass and to cause unnecessary delay and needlessly increase the cost of litigation. We choose to impose sanctions for this conduct, finding that cases like this drain valuable resources intended to benefit those who accept the social contract of living under a law-based system of government
The sanctions will have to be paid by both the client and the lawyer.