Friday, February 27, 2009

Is It Improper for a Lawyer to Perform Magic Tricks for a Jury?

Law.com reports today that in a motion in limine in a case called Blash v. ABA Construction Group, the plaintiff's lawyers begged the judge to forbid their opponent, Steven G. Leventhal from performing magic tricks for the jury. The motion argued that a lawyer performing magic tricks is "highly prejudicial, confusing, misleading for the jury" and has "absolutely nothing to do with the substantive issues."

Although Leventhal conceded in his brief that he does perform magic tricks regularly in trials, during his opening and closing speeches, he insisted that there's nothing wrong with doing so. He said he has been doing magic for decades as a trial lawyer and that his illusions are designed to illuminate his arguments. Most often, he said, the tricks accompany portions of his closing that accuse the other side of hiding the truth or trying to use smoke and mirrors to create a false reality. In one trick, Leventhal, who works exclusively for defendants, said he slowly folds a $1 bill while explaining to the jury that the parts of the plaintiff's case just don't tie together. When he unfolds the bill, he said, the astonished jury sees a bizarre bill that appears to have been cut apart and pasted together the wrong way, with the corners in the middle. In another trick, Leventhal said, the slowly folded $1 bill is revealed to be a $100 bill and then, to the jury's collective amazement, changes back to a $1 bill. Go here for the full story.

According to Model Rule 3.4(e) a lawyer shall not allude to any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue, state a personal opinion as to the justness of cause, the credibility of a witness or the culpability of a party. According to Rule 3.5, the lawyer shal not seek to influence a judge or juror by means prohibited by law.

Would the lawyer violate any of these rules by performing the tricks described above?

Budget increase for legal services

The House of Representatives has approved a $40 million budget increase for the Legal Services Corporation (LSC) as part of the fiscal 2009 omnibus appropriations bill. The Legal Services Corporation is the single largest provider of civil legal aid for the poor in the nation. Established by Congress in 1974, the Corporation operates as a private, nonprofit organization to promote equal access to justice and to provide high-quality civil legal assistance to low-income Americans. The 11 percent increase would bring funding for the Corporation to a total of $390 million, the third consecutive year that the House has supported additional funding to provide civil legal assistance to low-income individuals and families. Most of the funding, $365.8 million, would be awarded as competitive grants to 137 nonprofit legal aid programs across the nation. For the full story go here.

What constitutes "practicing law"?

What conduct constitutes "practicing law" is a question that has defied clear answers. An attempt to define the concept of "practice of law" by an ABA Commission proved so difficult, the project was abandoned a few years ago.

Yet, courts and disciplinary boards have to address this question every time they have to decide cases where a person is accused of practicing law without a license. For example, the Illinois Hearing Board recently concluded that work performed by a suspended lawyer involved practice of law in violation of a suspension order.

The lawyer had been suspended temporarily from the practice of law and arranged for another lawyer to take over his cases, but continued to work "behind the scenes" on one of his cases. He worked on several drafts of a brief adding significant legal arguments to it and met with the other lawyer to discuss them.

Given these facts, the Board concluded that the lawyer had been practicing law during his suspension. The Board concluded that it was clear that the lawyer "used legal skills and knowledge to identify the legal issues, conduct legal research, and apply the case law to the facts of his case. This is the essence of practicing law."

One problem with this formulation, though, is that it can apply to law clerks at the firm too. In fact, the attorney argued that "he did nothing more than paralegals and law clerks do" -- which is definitely true. We all know that attorneys often ask students to prepare drafts of documents that the lawyers later file under their names. Sometimes the attorneys make substantial changes to the documents but sometimes they don't. Does that mean the students are practicing law illegally before they are admitted. If so, students should be worried.

The Board, without explaining it further, simply dismisses the argument saying "We are not breaking new ground by finding Respondent practiced law. We are simply applying well-established case law to the facts of this case. Respondent was not a law clerk or a paralegal. He was a suspended attorney."

That last sentence, obviously, is the key. The Board does not really care that students are helping lawyers do their work by applying legal skills students develop while in law school. The Board is concerned with the fact that the lawyer in the case was told to stop working and he continued to do so.

That being the case, the Board probably should have cited Illinois Supreme Court Rule 764(b), which expressly states what a disbarred attorney can and cannot do. And, the bottom line of this rule is that a suspended lawyer can't do even what a law student clerk can. Interestingly, also, the rule states that a violation of the rule would be enforced as contempt of court. I wonder if that sanction was mentioned in this case and how often it is invoked in cases like this one.

The concern is that suspended and disbarred lawyers are still out there doing legal work (or something very close to it) "behind the scenes." Unfortunately, there is no good way to monitor this type of activity until it is discovered, which usually happens by accident.


Thanks to Legal Profession Blog for the information.

Thursday, February 26, 2009

Two reports of prosecutorial misconduct

Mike Frisch of the Legal Profession Blog reports today that the Michigan Attorney Grievance Administrator has filed a formal complaint alleging that the chief prosecutor for the Wayne County major drug unit offered knowningly false testimony in a criminal matter and that the prosecutor knowingly made false closing arguments based on the evidence. The jury convicted one defendant and was unable to reach a verdict with respect to a second defendant. As to the convicted defendant, the prosecutor's office confessed error and the case was remanded for a new trial. The other defendant was convicted at his second trial. The Michigan Court of Appeals affirmed the conviction but noted the misconduct of the prosecutor in the first trial.

The second case, reported by Jonathan Turley, involves an Assistant District Attorney in Georgia who resigned after being arrested for a drunken fight. He was arrested on misdemeanor charges of public intoxication and theft of services.

Should misappropriation result in automatic disbarment?

Mike Frisch, of the Legal Profession Blog, reports today that a case decided today by a division of the District of Columbia Court of Appeals imposes disbarment in a matter where the attorney had deliberately taken his fee from a modest estate without required court authority. In its report (which is attached to the court's decision), the Board expressed concern that disbarment might be too harsh a sanction but acknowleged that it had to follow a strict rule virtually mandating disbarment in all case of intentional or reckless misappropriation adopted by the court in In re Addams (1990). In today's decision, one of the judges urges reconsideration of the Addams decision. He views the holding as a "vitually non-rebuttable" disbarment presumption that fails to provide a meaningful case-by-case sanction analysis.

I have no problem with the old rule. I have no sympathy for lawyers who intentionally misappropriate funds. Whether it is $5 or $5 million, if you steal money from your client, you should be disbarred. Period.

Wednesday, February 25, 2009

Hot potato case

Students of Professional Responsibility might remember Picker International v. Varian, the case where the court held a lawyer cannot drop a client "like a hot potato" in favor of a new - presumably more profitable - one.

Proving that these things really do happen... here is a story from today's Law.com about a San Francisco Bluetooth headset maker (Aliph Inc) who has filed a motion to disqualify the firm for an opponent in a patent case arguing that the firm (Fish & Richardson) "played an unseemly game of hot potato by dropping it as a client and then turning around and suing for patent infringement the very next day."

According to the story, Aliph hired the firm to do FCC regulatory work in May. In December, the the firm tried to get Aliph to consent to the firm's representation of an adverse party in litigation. Aliph refused to waive the conflict. A month later, the firm sent an e-mail to Aliph on saying, "Unfortunately, . . . we can no longer represent Aliph on regulatory matters without Aliph's consent to the firm being adverse on IP matters unrelated to our regulatory work. . . ." The next day, Fish filed the patent infringement suit for another client against Aliph in the Eastern District of Texas.

The full story is available here.

Tuesday, February 24, 2009

Right to counsel in civil cases

LA Times article calling for a right to counsel in civil cases. In part it says: "Every day, Americans without access to legal counsel unnecessarily lose homes, jobs, retirement benefits, healthcare and custody of their children. This is because in America, we have not yet recognized a right to counsel in civil cases, except in a tiny number of narrow areas. Indigent clients with the law on their side often find themselves losing to well-funded opponents simply because they have no means of fighting back."

For the full article, see here.

Confidentiality And Prospective Clients

From Legal Profession Blog:

The District of Columbia Bar Legal Ethics Committee opines on confidentiality obligations to a prospective client where the communication comes from a lawyer exploring possible referral of the matter rather than direct communication with the prospective client:

When a prospective client consents to having a lawyer speak to a second lawyer on his behalf regarding the possibility of establishing an attorney-client relationship, the second lawyer has an obligation under Rules 1.6 and 1.18 to treat the communication as confidential, even if the second lawyer never speaks directly with the prospective client.

Given the importance of maintaining confidentiality of any information received by the first lawyer, it is advisable that the first lawyer disclose at the outset of the conversation with the second lawyer that the purpose of the discussion is to consider taking on a new case for someone, and to limit initial disclosures to the essential facts until it can be determined whether the second lawyer has a conflict of interest.

How to overbill a client

From an article in Lawjobs.com titled "The Art of Overbilling" here is a list of eight routine overbilling scams that litigators use. What is scary about this is, is that many lawyers actually think these are justified.

1. Tell clients they're more exposed than they actually are. That way they'll be willing to spend more on their defense. Any potential settlement will also likely look like a win from a client's perspective and that means more in fees!

2. Embrace document review, the mother lode of law firm billables. Hire temp or staff attorneys and bill the client at normal associate rates.

3. Raise your hand and "volunteer." The lawyer who crafts the initial version of any document for all parties "gets the lion's share of billable time out of the project." If a client asks why you're always willing to spend all day on some mundane filing, just say you want to control the process so they're protected.

4. Don't be afraid to double dip. Travel time is billable time, often for two or more clients at the same time.

5. Be a jackass. Angering opposing counsel is a proven, easy way to ensure a protracted legal battle. Always communicate in writing, which takes more time, instead of simply using the phone.

6. Cut-and-paste, but act original. Almost every brief has been written before. Except the one you're about to copy.

7. Let clients play lawyer if they want, even if they're spouting nonsensical arguments that would never hold up in court. Just close your eyes and listen to the clock tick.

8. Big words = big bills. Promissory estoppel? Statutory preclusion? Sounds important, right? Sometimes it is. Other times ... not so much. But most clients don't speak legalese. If they call and demand an explanation, talk them through it. It's all billable time, baby.

Friday, February 20, 2009

More on the solicitation question

In a previous post, I mentioned the issue of solicitation related to the Buffalo plane crash. It is interesting to note that New York has adopted a rule that bans communication with victims for 30 days (akin to the rule discussed by the Supreme Court in Florida Bar v. Went for it - an awful decision, if you ask me, by the way).The rule in New York states that "...no unsolicited communication shall be made to an individual injured . . . or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, seeking to represent the injured individual . . ."

This is a terrible rule because, as you can see from the text, it only applies to plaintiff's lawyers, which leaves the victims vulnerable to visits by the defendant's lawyers or their agents. This essentially defeats the argument that the rule advances the state interest in protecting the victim's privacy. I've been told the rule applies equally to defendants' lawyers, but I don't see it from reading the text of the rule itself. I'll have to do some more research to figure it out.

Article on the new Model Rule 1.10

Here is a link to an article in the ABA/BNA Manual on Professional Responsibility (an excellent source of information in this area, by the way) that covers the amendments to Model Rule 1.10.

Solicitation issues generated by plane crash in Buffalo

It has been said that whenever there is a big disaster the first two groups of people to arrive are reporters and lawyers, obviously implying that lawyers are there to solicit clients. Obviously, in person solicitation of clients, particularly those in a vulnerable state of mind, is unethical and unprofessional and can easily result in disbarment. On the other hand, solicitation by other means is allowed because it is protected speech -- and the state can only intervene if it meets a high (although not the highest) burden of constitutional scrutiny. Most of this kind of solicitation is done by means that, although not much less targeted than the personal visit, result in less intrusion on the privacy of the prospective client.

Sadly, earlier this month, there was plane crash in Buffalo that attracted the attention of lawyers looking for clients which leads to the question "How hungry does a law firm have to be to run the risk that their client acquisition tactics will put them in ethical hot water?" That is the question Eric Turkewitz, a lawyer in New York who hosts a well known New York personal injury blog, explores in a series of posts in the days after the crash. The posts, listed below in the order in which they were published, are well worth a look.

Buffalo Plane Crash WILL Test New York's New Anti-Solicitation Rules

Buffalo Plane Crash Ad Taken Down

Flight 3407 (Buffalo Crash) Web Site Established By Law Firm (Contravening Ethics Rules?)

DC Firm Jumps Into Cyber-Solicitation Fray, Chasing Buffalo Air Crash Clients

Wednesday, February 18, 2009

More reports and comments on the amendment to Model Rule 1.10

The National Law Journal will publish a short article in its next issue. It is available now online here (but I am not sure if you need a subscription to access it).

Tuesday, February 17, 2009

New Model Rule 1.10

As reported yesterday, the big news out of the ABA meeting is the approval of a substantial amendment to Model Rule 1.10. Before the amendment a law firm would be disqualified from continuing to represent a client in a matter if the firm hired a lawyer who had acquired confidential information about the oppossing party in the matter in his/her prior job. The new rule allows the firm to continue representing its client if it institutes a mechanism to "screen" the new lawyer -- preveting him access to anything and anybody related to matter.

As I pointed out in my previous post, I have never been a fan of screening even though it has been the practice in Illinois for years. The new Model Rule does add a few new requirements that make is better than the Illinois version. For example, the new Model Rule requires the hiring firm to give the incoming lawyer's former client written notice of the screening procedures. The firm must also let the client know they may seek judicial review and the new rule bars screened lawyers from directly sharing compensation from matters they're disqualified from due to the conflict.

Yet, for many, these changes are still not enough. For example, one comment to the ABA Journal.com article listed below states: "It is a sad day that sees the passage of this recommendation. In the context of massive layoffs, it certainly appears that real ethics have give way to the interests of stranded, individual lawyers and surviving firms that want to “cherry pick” from the castaways. Lawrence Fox is right. Violations will occur and will be covered up. Clients will have to fall back on common law duty of loyalty (and common law principles that impute knowledge within firms) when they suspect their confidences have been purchased with a lateral. . . ."

Here are some useful links:

Click here for the text of the new rule.

Click here for an article in the ABA Journal.com that summarizes the debate.

Click here for an article in Law.com.

ABA study concludes that more lawyers are providing pro-bono services to the poor

From the ABA Journal.com:

"More lawyers are donating more time to representing the poor for free, a study by the ABA Standing Committee on Pro Bono and Public Service has found. The report was issued today at the ABA Midyear Meeting in Boston. The study found that 73 percent of attorneys provided some pro bono representation to persons of limited means, or organizations that represent such people, during the prior year. That’s up from 66 percent in a 2005 study conducted by the group. Attorneys provided an average of 41 hours of pro bono work over the past year, up from 39 hours in 2005. The study was based on interviews with a representative sample of 1,100 lawyers nationwide conducted in 2008. It has a statistical accuracy of plus or minus 3 percentage points. The study found that 81 percent of lawyers in private practice provide some pro bono services, compared to just 43 percent of corporate counsel and 30 percent of lawyers working for government. Approximately 84 percent of solo practitioners and lawyers in firms of 2 to 10 attorneys reported doing pro bono, compared to 76 percent of lawyers in firms of 101 or more lawyers. More minority lawyers in private practice volunteered their time (90 percent) than did white lawyers in law firms (80 percent). The committee is encouraging legal groups nationwide to honor lawyers who donate pro bono time. The National Pro Bono Celebration is scheduled for Oct. 25-31."

Given how many lawyers there are in the US, I am not sure that a study based on interviews with just about 1,000 lawyers is truly conclusive, but any report that more people are doing pro bono work is good news indeed.

Monday, February 16, 2009

ABA approves amendment to Model Rule 1.10

The ABA voted today to adopt the proposed change to Model Rule 1.10 which would allow "screening" to avoid disqualification when an attorney who had participated in the representation of an adverse interest joins a new firm. The new firm would now be allowed to continue the representation of its client even though the new lawyer joined the firm.

Note that the ABA's newly adopted rule reflects what has been the rule in Illinois (see Illinois Rule 1.10) and in the 7th Circuit (see Schiessle v. Stephens, 717 F.2d 417 (7th Cir. 1983)) for some time. The Illinois rules and the ABA rules are now in accord over this.

Personally, I have never liked the Illinois/7th circuit approach, and I have even suggested that Illinois should abandon its long standing position, so I am not particularly happy.

One concern over screening is that the former clients really have no effective way of monitoring whether the screens are implemented or whether they are efficient. Most unethical conduct in this context can easily go undetected. The ABA committee seems to take the position that we can rely on the courts to impose disqualification but this seems to be inadequate in this particular context. As pointed out by Rob Vischer at Legal Ethics Forum, although the newly adopted rule and comments suggest that disqualification is still possible, they do not indicate that disqualification may be appropriate simply because the lateral lawyer was so heavily involved in the representation of the opposing party while at his or her former job, as opposed to disqualification based on deliberate misconduct or negligent handling of confidential information by the lawyer switching firms.

The debate over the proposal has been strong but in the end the ABA Ethics Committee proposal was approved by a vote of 226 to 191.

Sunday, February 15, 2009

ABA to discuss possible changes to rules re screening

On Monday, February 16th, the ABA will webcast its deliberations concerning the proposed amendment to Model Rule 1.10. The link to the webcast is here.

This is a contentious issue. Prof. Andrew Perlman has posted a short comment over at Legal Ethics Forum.com in which he provides some good links to posts for and against the notion of screening.

As he explains, "[t]he issue is difficult, in part, because it is hard to know just how dangerous a screening provision is. . . . If lawyers will breach the screen with any kind of frequency . . . the screening provision is a bad idea. If a breach of the screen will occur in very few cases, the benefits of screening probably outweigh the costs."

Prof. Perlman's comment is available here.

Saturday, February 14, 2009

Now you can subscribe by e-mail

I have added a form for you to enter your address if you want to receive updates by e-mail. All you need to do is enter your address in the form and follow the instructions. You will get one message a day -- and only if there is any new content added to the blog. However, you will not get notice of any comments to the posts. Also, I am not sure if you get photos or video embedded in the e-mail messages. You may have to come visit the site itself for all those. E-mail me directly if you have any problems with this new feature. The form appears at the bottom of the right hand side panel.

Site's new look

Just for fun, from time to time I will change the look of the website. Feel free to post comments or to e-mail me to let me know what you think...

Thursday, February 12, 2009

Judge does not know the law; neither do appellate lawyers

What do you get when you have a lawyer who does not know the law appealing a decision of a judge who does not know the law either? You get US v Beltran Moreno a decision issued two days ago by the Court of Appeals for the Ninth Circuit.

In this case, two defendants pleaded guilty to a multiple-count indictment. Because the district court judge was not familiar with the law regarding sentencing, he calculated a mandatory minimum sentence of twenty years, which was twenty years lower than that required by statute. What’s more, the district judge then exercised his discretion to depart downward from the US Sentencing Guidelines recommendation, sentencing the defendants to thirty-five years in prison instead of imprisoning them for the rest of their lives as the Guidelines suggest.

The defendants’ trial counsel had the good sense not to object to the district court’s sentence, which — given that it was lower than legally mandated — was certainly better than they could have possibly imagined. But, their appellate counsel, remarkably, decided to appeal their sentences and, even more remarkably, did so based on an argument that the court of appeals describes as "squarely foreclosed by decades-old circuit precedents." The court also noted that "counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law."

Why in the world would anyone seek to appeal if there was only one direction in which the defendants' sentences could go, and that was up — by at least five years?

The only thing that saved the defendants from their own lawyers was the fact that the government surprisingly did not appeal (didn't they know the law?) and that a year after they filed their notices of appeal, the Supreme Court held in another case that an appellate court cannot raise a defendant’s sentence if the government has not appealed.

The conduct of appellate counsel is just another example of how not to practice law and they were very lucky the court did not impose sanctions. They filed an appeal that, given the law at the time, could only have resulted in a higher sentence for their clients and did so based on a frivolous argument. Only because of the subsequent decision of the Supreme Court were the clients spared the consequences of their attorneys poor judgment.

As the court of appeals concludes:

"We hope that this case will serve as a strong warning for the defendants’ appellate counsel." . . .

. . . We remind counsel that the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the relevant case law and to advise a client properly on the consequences of an appeal. While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been. We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous. Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions. However, in the future, we caution counsel to be more diligent, for their own sakes and, more important, for their clients’."

The opinion is available here.

Thanks to Lou Gasperec for pointing me to this little jewel.

Anticipation over the ABA's possible adoption of a screening rule

The Feb 16 edition of the National Law Journal (available here now) has an editorial supporting the proposed changes to the ABA Model Rules that would allow screening.

Wednesday, February 11, 2009

More examples of how not to practice law...

If the judge gives you an order, follow it or fight it but don't go behing the judge's back to avoid it. The ABA Journal.com reports today on a case where a lawyer, after voluntarily withdrawing from a personal injury case when his law firm was accused of bribing an employee of the defendant, tried to avoid a court's order that he forgo any fees in the case by entering into a secret fee sharing agreement with the attorney who took over the case. Phew, that was a long sentence! So let me get this straight. This guy is caught bribing a possible witness and the judge lets him withdraw on the condition that he not make any money in the case, and then he goes and tries to do it anyway.... and gets caught... again.

Monday, February 9, 2009

Are lawyers' First Amendment rights being unfairly limited?

Today's National Law Journal has a short article discussing a series of cases in California, Florida, Michigan, New York and Ohio which the article says are "at the center of legal debates and constitutional battles involving harsh and sometimes vulgar comments about judges." The article is available online here (although I am not sure if you have a subscription to access it online).

Thursday, February 5, 2009

Illinois disqualifies almost 600 attorneys for failing to attend CLE

The Illinois Attorney Registration & Disciplinary Commission has announced that it has dropped nearly 600 lawyers from its list of those qualified to practice in the state, citing their lack of compliance with new continuing legal education requirements. The agency booted the attorneys from the state's so-called "master roll" this year when they failed to file the paper work showing they had completed 20 hours of certified legal training between July 1, 2006, and June 30, 2008.

Tuesday, February 3, 2009

New Center on the Legal Profession at Stanford Law School

Stanford Law School has launched the Stanford Center on the Legal Profession, which will focus on professional responsibility, leadership development and quality of life issues. Stanford law professor Deborah L. Rhode will serve as its director. She is the founder and former director of the school's Center on Ethics. The Center of the Legal Profession will work to expand services to low- and middle-income individuals. It also will address issues pertaining to the lives of lawyers, including escalating billable hour requirements and diversity in the profession. In addition, the Center on the Legal Profession will offer interdisciplinary leadership development and continuing legal education leadership programs.

Monday, February 2, 2009

Effect of the 5th Amendment right against self-incrimination in disciplincary proceedings

The Illinois Review Board has posted a decision today that explains the procedure to follow when an attorney facing discipline refuses to answer questions by claiming the protection of the 5th Amendment. Here, after the lawyer refused to answer certain questions on Fifth Amendment grounds, the Administrator sought an unfavorable inference and to have the invocation treated as a sign that the lawyer was not candid and cooperative. The board held that although was appropriate for the Hearing Board to draw an adverse inference from Respondent’s assertion of the Fifth Amendment for purposes of their function as a fact-finding body, it was inappropriate for the Hearing Board to have treated that assertion as tantamount to a "failure to cooperate" or as an aggravating factor for purposes of imposing discipline. The opinion is available here.

Thanks to David Frisch of Legal Profession Blog for the information.