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.

Thursday, January 8, 2015

Bar counsel taking plea deals to avoid disbarment? What would you do?

 Mike Frisch (Georgetown) who runs the Legal Profession blog has posted a great question: 

You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.

The presumptive sanction for such misconduct in your jurisdiction is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.

Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred. Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.

You know (1) that a fully litigated case might take five years or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct. That happy event is likely at least two to three years away.

So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.

Do you take the deal if your system gives you the authority and responsibility to do so? If your system does not permit a consent disposition under these circumstances, is there something wrong with your system? 

Please go here to post your comments on this question.

As for me, I think I would take the deal because under the circumstances it would likely result in the equivalent of permanent disbarment (given the attorney's age and plans to retire).  Others might disagree and I am willing to be convinced I am wrong...

To me, the worst part of the scenario is the fact that disbarment is only the equivalent of a five year suspension.  If it were up to me, disbarment would always be permanent. 

Sunday, January 4, 2015

Four things the next attorney general needs to know about the indigent defense crisis in the U.S.


The Sixth Amendment Center, a non-profit organization founded to assist states and local governments in meeting their constitutional obligation to provide competent counsel to the indigent accused, has posted an important comment on the indigent defense crisis in the United States.  You should read it here.

Top Professional Responsibility Stories of 2014

The Legal Ethics Forum has published its annual list of top stories for the past year here.  There is also a link to a list of stories on Canadian PR here.

Tuesday, December 23, 2014

NY State Bar issues opinion on whether an attorney can disclose confidential information in order to rebut comments by a client on a website

A couple of months ago, the New York State Bar Association Committee on Professional Ethics issued an opinion on an interesting question:  “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”

Holding that the "self-defense" exception to the duty of confidentiality does not apply to this type of case,  the Committee answered "no."  You can read the opinion (Opinion 1032 (10/30/2014)) here. The Committee finds that the "self-defense" exception should be limited to cases involving allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions.

The result seems sensible to me.  An ttorney would not be allowed to discuss confidential information about this matter with another person (say, someone who read the review and asks the attorney about it), so it would make sense the attorney can't disclose the information to the world at large.  In both instances, the attorney is not "defending" against an action by the client but addressing comments made by the client.  Take the website aspect out the equation and what you have is a former client talking to others and the attorney wanting to take a chance to give his/her side of the story to the same audience.  The attorney is free to do so, but can't disclose confidential information in the process.

The fact the comments are "published" (on the website) and can reach a much wider audience should not change the analysis.  The Committee suggested, however, that the answer might be different if client had somehow waived his expectation of confidentiality by posting the comments.  The Committee did not address that possibility because question was not presented by the facts before the committee. 


h/t The Lawyers Ethics Alert Blog

NY Times and ABA Journal on the interview with Robert McCulloch

Yesterday, I commented on the recent interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri, in which he seems to admit to having used perjured testimony.  Today, the New York Times and the ABA Journal picked up the story (here and here).  Both mentioned the fact that McCulloch admitted to allowing a certain witness to testify even though he "was sure" she was not telling the truth.

Again, if the prosecutor was "sure" the witness was not telling the truth, then why is allowing her to testify not a violation of the duty not to present false evidence?   Is saying that he was sure she was lying the same as saying he "knew" she was lying?  Or, is saying that he was sure simply saying that he strongly suspected that the witness was lying, but did not actually know it?

If it is the former, he admitted to violating the rules.  If it is the latter, he did not. 

Monday, December 22, 2014

Federal District judge finds that certain aspects of the Florida rules regarding advertising violate First Amendment

Almost exactly one year ago, I reported on a challenge to the advertising rules in Florida (here).  Coincidentally, just a few days ago, the Lawyers Ethics Alerts blog reported that a Federal Southern District Judge issued an opinion (apparently in a different case) granting summary judgment in favor of those challenging the rule (and against the Florida Bar) and enjoining the Bar from enforcing it. The case is Robert Rubenstein v. The Florida Bar. You can read the order/injunction here.