Friday, September 12, 2014

How not to practice law: if you are a judge, show up drunk to preside over your cases

Need I say more?  The story is here.  It sounds like this was not a case of a judge being irresponsible, but of inability to control alcoholism.  In a case like that I think there is more need for help than for sanctions.  On the other hand, you can't trust a judge who can't be trusted to handle this problem.  I think a suspension and requirement to go for treatment would be an acceptable sanction.  What do you think?

Wednesday, September 10, 2014

Interesting oral argument before the Illinois Supreme Court on allocation of authority to make a decision and ineffective assistance of counsel

The Illinois Supreme Court heard an interesting oral argument today involving an allegation of ineffective assistance of counsel based on the fact that the attorney did not advocate for a position in favor of the client (defendant in a misdemeanor case).  One of the things that make the case interesting is the unusual circumstances that gave rise to the appeal.

At some point during the process, the prosecutor asserted a "bona fide doubt" as to the fitness of the defendant to stand trial.  Counsel for the defendant did not object.  Based on the state's statement, the court ordered an evaluation of the defendant.  On appeal, the defendant (represented by a different attorney) is now claiming that the trial counsel was ineffective because he did not object to the state's argument of unfitness.

During the oral argument, the justices ask good questions about whether the decision on what position to take as to the fitness of the defendant is one for the defendant or the attorney; whether it is strategic or substantive, etc.  In part, defense counsel argued that the decision belonged to the client because it involved more than mere "tactics."  Because this was a misdemeanor case, a finding of unfitness could result in the defendant remaining confined for a longer period of time than if found guilty.  Thus the decision on what position to take as to the fitness of the client affected the ultimate goals of the representation.  For that reason, the defendant is arguing that the attorney's failure to take her position that she was fit constituted ineffective assistance of counsel.  In contrast, the state argued that although the attorney may have had a professional responsibility duty, the failure to object did not amount to a violation of the right to effective assistance of counsel.

Another issue discussed by the parties is whether there was a need to request a guardian ad litem and whether the decision in Austin M., a case I have written about, applies to this case.

You can listen to the audio of the oral argument here or watch the video here.

Will you be replaced by a robot? or a computer program?

Lawyers are often asked by clients to review contracts prepared by others.  However, because this type of task is something for which you don't need a law degree, someone has come up with the idea to create a computer program to do it.

Enter "Legal Sifter", the computer program that aims to take your job as a contract analyst. The computer program is designed to "eyeball a contract, much in the same way that an experienced lawyer might if asked by a fellow attorney or a friend to have a quick look."  It scans documents and assigns them a score based on how favorable the terms are for the user. It also provides users with an explanation of the clauses and provisions in the document and suggests potential changes to provisions that are probably not in the user’s best interest.  Sounds promising, but will it displace lawyers?  I don't think so.  The program appears to offer some benefits for some users, but the complexity of many of the types of contracts lawyers are often asked to review is probably beyond its capabilities.  Computer code is no match for professional experience when it comes to complex legal issues and transactions.

Over at My Shingle.com, Carolyn Elefant discusses the issue in more detail.

ABA publishes Formal Opinion on duties of supervisory prosecutors

As you probably remember, in Connick v. Thompson and in Smith v. Cain the US Supreme Court was faced with allegations of misconduct by the District Attorney's Office in New Orleans including allegations that the DA had failed to train prosecutors about their duty to disclose exculpatory evidence.  Meanwhile, many other courts continue to overturn convictions due to prosecutorial misconduct.  (Go to the prosecutors label on this blog and scroll down for more.)  You would think that prosecutors would know their duties, but either because they don't or because they don't care, prosecutorial misconduct continues to be an epidemic.

In an attempt to provide some guidance, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 467, addressing the managerial and supervisory responsibilities of prosecutors.  The summary of the opinion is as follows:
Model Rules 5.1 and 5.3 require lawyers with managerial authority and supervisory lawyers, including prosecutors, to make “reasonable efforts to ensure” that all lawyers and nonlawyers in their offices conform to the Model Rules. Prosecutors with managerial authority must adopt reasonable policies and procedures to achieve these goals. Prosecutors with direct supervisory authority must make reasonable efforts to ensure that the lawyers and nonlawyers they supervise comply with the Rules. Where prosecutors have both managerial and direct supervisory authority, they may, depending on the circumstances, be required to fulfill both sets of obligations. The particular measures that managerial and supervisory prosecutors must implement to comply with these rules will depend on a variety of factors, including the size and structure of their offices.
Of particular interest, the opinion states that supervisors in prosecutors' offices should create a “culture of compliance” by emphasizing ethical values and obligations during the hiring process, providing incentives such as positive reviews, promotions and raises for ethical behavior, protecting and rewarding lawyers who report misconduct up the ladder within the office and by internally disciplining those who violate professional conduct rules.

I have nothing against all these suggestions and I should not be surprised by them since the reason we need to stress a need to "create" a culture of compliance with ethical rules is that there seems to be a history of disregard for them.  But it always bugs me to know there is a need to remind prosecutors and their supervisors that they have a duty to be ethical.

Thursday, August 28, 2014

Is "dignity" a proper standard for judicial office campaigns?

The Legal Profession blog has a story here.  In short, the South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that a judicial candidate can advertise in a movie theater as long as it is done "with dignity," a reference that apparently would apply to both the ad and the movie itself.  I posted a comment to the story and got some replies.  Go here to check it out.

My comment is that I am always troubled by the use of "dignity" in any decision judging speech by attorneys. It seems to me the use of "dignity" as a standard goes against the principle that the First Amendment stands to protect speakers against the state imposing sanctions based on the fact that some might find the speech offensive.  Granted, that principle was significantly weakened by the US Supreme Court's decision in Florida Bar v. Went for it, but the other cases in the long line of attorney speech cases still stand, including Zauderer, where the court said that regulating the dignity of the illustration of the IUD was not a good enough state interest.

Monday, August 25, 2014

New York State Bar Association report on social media ethics guidelines

As you know, the Model Rules were amended recently to recognize that an element of competence is knowledge about "technology" which includes computer programs and the use of social media. In addition, some bar groups have also issued reports or opinions on social media.  For example, I recently reported that the Philadelphia Bar Association’s Professional Guidance Committee issued an opinion on the ethics of advising clients on the use of social media.

But "social media" includes so many different things and its use can have so many implications that more guidelines are needed.  Fortunately (at least for lawyers in New York), earlier this year, the New York State Bar Association issued a report called "Social Media Ethics Guidelines" (available here.)  The guidelines discuss topics ranging from attorney advertising and furnishing legal advice through social media to ethically communicating with clients and researching prospective and sitting jurors.  Needless to say, these and other guidelines will continue to evolve in order to keep pace with technological developments.

Friday, August 22, 2014

Kentucky Supreme Court finds that it is unethical to require a defendant to waive right to claim of ineffective assistance of counsel as part of plea bargaining

As you probably know, it is not uncommon for convicted criminal defendants to challenge their convictions alleging that their lawyers did not provide effective assistance of counsel, and that sometimes the ineffective assistance related to the attorneys' inadequate counseling on whether the defendant should agree to a plea offer.  However, apparently prosecutors in federal court often require defendants to give up that right in order to have a favorable plea bargain.  In other words, it has been reported that often the plea offer is conditioned on the defendant waiving the right to challenge the attorney's performance as ineffective as part of attempts to seek post conviction relief.

Yesterday, the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

The opinion was the result of a request by the prosecutors of the office of the United States Attorneys for the Eastern and Western Districts of Kentucky to review the merits of an advisory ethics opinion by the Kentucky Bar Association (Ethics Opinion E-435), an ethics advisory which held that the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  After a very well reasoned discussion of the opinion, the Court concluded that it agrees with the Bar Association and that it is unethical for prosecutors to include a waiver as a condition to a plea agreement and for defense lawyers to advise clients about it.

The case is called US v Kentucky Bar Association and the opinion is available here.  For comments go to The Legal Ethics Forum, Behavioral Legal Ethics, The Legal Profession Blog, and a ;ublic defender.

Thank you very much to Grace Giesel (Univ of Lousville) for sending me the news!

Wednesday, August 13, 2014

Court of Appeals for the Third Circuit finds that NJ rule regarding advertising is unconstitutional

In a case called Dwyer v. Cappell, the Court of Appeals for the Third Circuit has found that a certain rule adopted in New Jersey to ban attorneys from quoting judges (saying good things about the lawyers) in the lawyers' ads violates the First Amendment.  The opinion is available here.

In this case, a lawyer had posted on his website quotes from judicial opinions in which judges praised the lawyer's work. After the lawyer refused a request by a judge to remove a quote from his website, the state adopted a new rule that prohibits quotes from judges, but that allowed posting a full opinion.

As I understand it, the new rules was based on several arguments:  (1) that statements in an opinion discussing a lawyer’s work do not constitute an endorsement; (2) that the use of the quotes could make judges could appear biased in favor of certain attorneys and (3) that quotes taken from opinions could be taken out of context.  For this reason, and to avoid operating as a complete ban on speech, the rule allowed the use of the full opinion.

In sum, the three arguments are just expressions of the most common argument used by states that want to limit attorneys' speech: that the speech is "misleading."  And this is the most common argument because misleading speech is not protected speech.

Yet, the Court was not persuaded.  Because the use of the quotes is at worst "potentially misleading," the validity of the rule should be analyzed under the standard used for commercial speech as developed by the Supreme Court starting in Bates and Zauderer.  And using that analysis, the rule fails.  

On the other hand, the Court did not leave the state empty handed.  It suggested that because the information could be potentially misleading, the state could impose the use of a disclaimer to explain the origin of the quote and to state that the quote does not necessarily constitute an endorsement by a particular judge.

Friday, August 8, 2014

Movies with pivotal lessons for lawyers

As many of you know, I keep a list of recommended movies for lawyers and law students.  It does not includes all the law related movies out there; only ones I have seen and would recommend.   Now for those of you interested in movies, here is a link to an article in the ABA Journal.com listing twelve movie scenes that offer important lessons for lawyers.  You can click on each movie title for a short description of the relevant scene and the lesson the authors think it helps teach.

Thursday, August 7, 2014

Legal Zoom?

As you probably know, there are a number of decisions out there addressing the issue of whether Legal Zoom engages in "unauthorized practice of law."  (For previous posts on this go here, here, here, here, here, here, and here.)  I think this is an important debate because it relates to broader questions of lack of access to legal representation and whether non lawyers should be allowed to provide some legal services.   Here is a recent short article in the ABA Journal.com on the subject and some comments in The Legal Ethics Forum (with links to more).