Thursday, June 25, 2009

Sleeping during trial = ineffective assistance of counsel

A Brooklyn judge has reversed a conviction because the defendant's attorney (Michael Harrison) repeatedly fell asleep at trial, allegedly read magazines while witnesses testified and gave such a rambling, implausible opening argument that the jury laughed. The court held that "the facts and circumstances of this case compels this court to find that the quality of the legal representation provided to [the] defendant . . . was so insufficient that the integrity of the judicial process was placed in jeopardy. . ." and that "defendant did not receive the minimum level of representation that is required by law."

The case is People v. Irizarry, available here.

The full story is available here and here.

Thursday, June 18, 2009

It's not so bad to violate a rule if you have a good reason for it. Huh??!!

The Legal Profession Blog is reporting today on a decision from the Maryland Court of Appeals that raises an interesting question regarding the nature of sanctions under the Rules of Professional Conduct.

In this case, the Court found that a lawyer violated Rule 1.8 when he made a loan to his client, but then found that this improper transaction was mitigated by the fact that the client requested the loan and that the client's need for the funds was based on some "pressing circumstances." The Court then concluded that, for this reason, the lawyer's conduct "did not rise to the level of an MRPC 8.4 violation."

I don't understand this. First of all, I thought Rule 1.8 could stand on its own. A violation of Rule 1.8 is a violation of the Rules. Thus it can give rise to sanctions on its own -- there is no need for it to "rise to" any other level. Second, in almost all cases in which the attorney makes a loan to a client there are "pressing circumstances."

If there is a rule, the Court should apply it. What the court is saying here is that the lawyer violated the rule, but it is not so bad because he had a good reason for it.

I am sorry but that's absurd. That undermines the reason for the rule in the first place. If you don't like applying the rule, change the rule. Several states have created exceptions to this rule to allow for loans to clients in need. But don't say that it is okay to violate the rule if there is a good reason to do it.

The opinion is available here.

Thursday, June 11, 2009

Court finds concurrent conflict does not justify reversing conviction

The Legal Profession Blog is reporting today that the Idaho Supreme Court has affirmed a defendant's murder conviction even though the defendant claimed that his counsel labored under an imputed conflict of interest because a fellow public defender had represented the deceased wife's mother in a related matter. The court agreed that there was a conflict that would have required the personal disqualification of the other lawyer. However, the court found that the trial court's approval of a screen between the two lawyers was an adequate way to eliminate the problem (which is interesting since Idaho Rule of Professional Conduct 1.10 does not provide for screening as a cure for imputed concurrent conflicts). The court justified its decision concluding that there are unique considerations that apply to public defender offices that militate against a per se disqualification rule. The opinion is available here. I am not sure what to think, although the use of a screen to avert concurrent client conflicts does not sound right to me. But I will reserve my comments until I read the opinion.

How not to practice law: lie to the disciplinary committee

Again, taking a break from grading exams to post this new installment to our on-going series on "how NOT to practice law."

So, here is a little nugget of wisdom: if you make a mistake and have to appear before a disciplinary committee, do not lie! Committing perjury in a disciplinary proceeding is probably not a good idea!

The Legal Profession Blog is reporting today on a case in New York in which the Appellate division disbarred an attorney for, among other things, lying during the disciplinary process. What is interesting is that the court states clearly that the lying in and of itself would have been sufficient to justify the sanction: "Respondent's lack of candor before the Committee, the Referee and Hearing Panel normally arises in the context of aggravation on the issue of sanction. Here, however, as the Referee correctly noted, respondent's pattern of untruthful testimony while under oath before Committee staff constitutes significant misconduct, entirely independent of all his other misconduct which already justifies his disbarment."

Billing for time spent billing?

Suppose an attorney prepares a bill and sends it to a client. Then suppose the client asks the lawyer to review it, explain some items or revise it. Can the lawyer charge the client for the time spent reviewing the bill?

According to a Grievance Committee of the North Carolina Bar the answer is NO.

The ABA Journal.com is reporting today that the comittee held that a $50 charge to review a bill is the same as “task padding” and excessive. According to the committee, reviewing the bill is an “obligation every lawyer owes to a client and is an overhead expense incidental to the practice of law.” The Committee's opinion reprimanding the lawyer is available here.

Illinois appellate court finds ineffective assistance of cousel

I am taking a break from grading exams to catch up with blogs, news and other stories.

About a month ago, I reported that the Illinois Appellate Court (5th Division) reversed a murder conviction because of ineffective assistance of counsel. See here.

Today, the First Division of the same court has announced a similar ruling finding that the defendant was denied effective assistance of counsel because of his attorney's failure to make a closing argument and his failure to object to the admission of certain irrelevant evidence (a gun).

The court determined that although under many circumstances the waiver of closing argument is a matter of trial strategy, it would be a rare case in which choosing not to make a closing argument in a jury trial would be sound trial strategy. "Given the evidence in this case," the court concluded, "this was not such a case."

The case is People v Wilson and it is available here.

Sunday, June 7, 2009

Did Judge Sotomayor violate ethics rules when in private practice?

A couple of months ago, I commented on a decision of the Supreme Court of Ohio which found that a lawyer had violated a number rules of professional conduct by using a firm name with the phrase "and Associates" when, in fact, the lawyer did not have any associates. Interestingly, I just read that Supreme Court nominee Sonia Sotomayor may have done the same thing at one point in the past. She referred to her firm as "Sotomayor and Associates" but it is not clear that she had any associates. For the full story go here.

Thanks to Eric Turkewitz of the New York Personal Injury Law Blog for the information.

Monday, June 1, 2009

Exams and vacation

You may have noticed I have not been posting any news recently. I have been busy trying to finish grading final exams and tomorrow I am taking a few days off to take our kids to visit their grandfather who lives several states away... This means I will be away from the computer for a little while longer, but I will come back with interesting stories, news and comments soon.