Monday, August 31, 2009

Where have you gone loyalty principle? Our nation turns its lonely eyes to you....

Every now and then, a case (or news item) comes along that makes you question just how strong those "values of the profession" that we love to say we are so proud of really are.

This summer the ABA, and many states, went through lengthy debates on whether allowing firms to use "screening" (in cases where a lawyer moves from one firm to another) goes against the value of loyalty. See blog entries here. As part of that debate, one commentator argued: ". . .it certainly appears that real ethics have given way to the interests of stranded, individual lawyers and surviving firms that want to “cherry pick” from the castaways. . . . 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. . . ."

But, okay, you can make the argument that that question is a close call. You can make an argument to justify the position taken by the ABA. Even after the approval of the new approach to the question, loyalty is still an important value. Right?

Then someone noticed that, as originally drafted, the new rule would have allowed attorneys to use screening to represent clients with competing interests concurrently.

Now, this won't do! So the rule was changed again...

Now enter the well oiled slippery slope.

Law.com is reporting that a Delaware federal judge has OK'd a lawfirm to use of a "screen" between the firm's U.S. lawyers opposing client Wyeth in a U.S. patent case and its European attorneys working with the pharmaceutical company in an unrelated matter.

In other words, the firm is representing Wyeth in one case and opposing it in another over Wyeth's objections.

Note this last piece of information - over the client's objections. So where exactly is the loyalty principle here?

The judge's order reportedly states that the client's opposition "means the firm is technically violating the Delaware court's local rules and the American Bar Association's Model Rules of Professional Conduct."

You have to love the use of the word "technically"! I am sorry, but there is not "technicality" here... The firm's conduct is either a violation or it isn't. And this judge simply admits he has agreed to the firm's attempt to act in a willful violation of the rules.

Why would the judge do that, you wonder? Well, essentially, there are two reasons: it is the client's fault and "globalization."

Yep. Believe it or not, the court allows the firm to willfully act unethically because, according to the judge, it is the client's fault. According to the article, he blamed Wyeth for not clearly indicating to the firm which of its in-house attorneys were working on which matters and for having sloppy legal billing practices. "[These practices] . . . created significant confusion for [the lawfirm] as to which entity or entities it was representing,"

And then, there is the obligatory mention of "globalization." The article quotes one of the partners of the law firm in question as saying: "When you're dealing with increasingly globalized economies, increasingly globalized law firms and different countries . . . . courts will likely look to the use of ethical walls "to reconcile all of these tensions."

Re-enter the aforementioned slippery slope.... Couldn't a firm with separate offices in New York and Chicago make a similar argument?

Maybe the mistake someone found in the new rule 1.10 was really just an omen. Maybe we are not that far away from allowing firms to represent competing interests concurrently after all.

Listen people, if your client objects to your representing a competing interest, do the right thing and respect your client's wishes. Your interest in securing another lucrative client or case should never come before your duty to your current client. That is called your fiduciary duty, in case you forgot.

The latest Gallup poll shows our profession could still go lower in the public opinion of trustworthiness. Let's work to move up, not further down.

Go here and here for the full story.

Saturday, August 29, 2009

California considers allowing victim statements as part of discipline cases

Law.com is reporting today that for more than two years, the California State Bar has been endorsing tougher and more aggressive prosecutorial tactics in disciplinary matters. The most recent example is a proposal to allow victims to submit a written statement explaining how their former attorneys' alleged misconduct hurt them. Statements would be submitted only after an attorney has been found culpable of pending charges and would be used by the State Bar Court judge in determining the level of discipline to be imposed. Accused lawyers would be allowed to cross-examine the victim only if they demonstrate good cause.

Go here for the full story.

Case dismissed because of attorney's misconduct

When is attorney misconduct so egregious that it warrants dismissal of the client's case? That was the question for the 7th U.S. Circuit Court of Appeals in determining whether to uphold the dismissal of a case that was thrown out for what Chicago federal district court Judge Milton Shadur described as a "virtually unbroken pattern of dilatory and irresponsible conduct" by plaintiffs lawyer Jorge Sanchez of Despres, Schwartz & Geoghegan. The appeals court upheld Shadur's decision, ruling that a district court's power to sanction for violations of the judicial process is necessary to ensure the integrity of the court. Go here for the full story.

Another criminal conviction vacated because of prosecutorial misconduct

Saying a federal prosecutor engaged in misconduct by asking jurors to rely on false testimony by a government witness, a judge has ordered a new trial for four defendants on some counts in a drug conspiracy case in Chicago. For the full story go here and here.

Friday, August 28, 2009

Time sheets

Time sheets during a "good economy" ...





Time sheets in a "bad economy"





Thanks to David Mills of Courtoons.

Thursday, August 27, 2009

New decisions on unauthorized practice of law

The Supreme Court of Ohio ruled today that Cincinnati-based Foreclosure Solutions L.L.C. and the company’s owner, Timothy A. Buckley engaged in the unauthorized practice of law by giving legal advice and negotiating with lenders on behalf of thousands of property owners facing foreclosure of their mortgages. For the full story go here.

Last week, the Illinois Court of Appeals (4th division) decided a case called People v Harris, in which it affirmed a conviction of a law school graduate for "false personation of an attorney." He admitted that he was not admitted to practice in Illinois.

The applicable statute reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”

The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."

This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.

Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?

After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.

The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.

Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.

The opinion is available here.

Monday, August 24, 2009

Incompetence results in discipline

Although the rules of conduct include a rule that requires competence, it is not all that common to see discipline imposed for a single instance of incompetent representation. Thus, it is a little surprising to hear about a new case by the Nebraska Supreme Court in which it suspended an attorney who had failed to provide competent representation in a civil rights lawsuit. The case is available here. The attorney had never handled a similar lawsuit in the past, failed to associate with more experienced counsel and failed to adequately prepare for the case. The attorney did not contest the charges.

Thanks to Mike Frisch of the Legal Profession Blog for the information and link.

On the slow death of the billable hour...

Here is a an article in today's Wall Street Journal Blog on different ways in which companies are trying to avoid having to agree to pay their lawyers by the hour. The article is available here.

Friday, August 21, 2009

Public opinion of lawyers

Only 25 percent of Americans have a positive view of the legal field, according to a new Gallup survey. Go here for the story.

Wednesday, August 19, 2009

Ninth Circuit reverses conviction because of prosecutorial misconduct

The 9th U.S. Circuit Court of Appeals has thrown out former Brocade CEO Gregory Reyes' criminal conviction for backdating stock options because of prosecutorial misconduct. The Court ordered a new trial because the prosecution misled jurors with false assertions during closing arguments. The opinion is available here. Full story here.

Friday, August 14, 2009

Should stealing from a client be minimized because of "mitigating factors"?

Readers of this blog and my students know how I would answer this question.

The Legal Profession Blog is reporting today on a case where an attorney who had misappropriated entrusted funds was only suspended for one year by the New York Appellate Division. The opinion is available here. In imposing the short suspension, the court considered the following mitigating factors: the lawyer's previously unblemished record, the lack of economic harm to any client, the respondent's sincere remorse, the positive character evidence submitted, the prompt remedial measures undertaken and the fact that the underlying events took place over a limited period during which the respondent was experiencing medical problems and adverse reactions to prescribed medications.

I would have voted to disbar. No question. I can't think of any argument that will convince me that you can justify stealing money from a client. My 5 year old son knows you don't steal. A lawyer who has an ethical and fiduciray duty should know better.

The mitigating factor that bugs me the most is "the lack of economic harm to any client." So, let me get this straight, suppose the lawyer needs money to pay some medical bills... it is now "not so bad" to take clients' money to pay the bills as long as the lawyer replaces the money before anyone misses it?

Friday, August 7, 2009

Moral Turpitude?

I have heard colleages of mine complain that the concept of "moral turpitude" is not very clearly defined as a standard to determine if an attorney should be disciplined. Now comes news of a case that should add fuel to that fire.

The Legal Profession Blog reported yesterday that a District Of Columbia hearing committee held that a lawyer should be disbarred because he engaged in conduct involving "moral turpitude." What is interesting about the case is that this decision was actually a reversal because the Board on Professional Responsibility had concluded that the lawyer's conviction did not establish moral turpitude per se.

Now here are the facts of the case: the lawyer had come home angry about something relating to the Maryland or D.C. lottery. He then proceeded to shoot his wife in the head with a .32 caliber revolver. Fortunately, she survived and the lawyer was sentenced to 25 years in prison.

Now here is my take on this: do we really need to get into a debate as to what constitutes moral turpitude, have a committee issue an opinion, hold a hearing to have another commitee then issue a reversal all to conclude that a guy who shoots his wife in the head when he gets angry and is sentenced to served 25 years in prison should not be allowed to practice law?! I mean, c'mon people! He shot his wife in the head; he got convicted!! What more do you need to know?

Wednesday, August 5, 2009

Judge holds rules re advertising on the internet are invalid

A federal judge has struck down two Louisiana rules of professional conduct that attempted to regulate Internet advertising. The opinion is available here. The court ruled that the state did not provide any evidence that one of the rules was narrowly tailored to directly and materially advance substantial state interests and that it was not clear that the other could apply to internet advertising.

For more on the story go here.

Lawyer disciplined for blogging about trial while serving as a juror

Not too long ago, I posted a note about a lawyer who got disbarred for not taking his role as a juror seriously. See here. Now comes news of a lawyer who disregarded a judges order not to discuss a case in which he was serving as a juror.

The lawyer had his law license suspended for 45 days when he decided to post comments on his blog about the trial after the judge warned the jurors "not to discuss the case, orally or in writing." Wilson has been cited as claiming that he did not understand the jury instructions to prevent him from posting comments about the trial on his blog. This argument merits only one response: Lame!

The lawyer simply disregarded a court order showing disrespect for the process. And it did not help his case that that the court of appeals reversed the convition at least in part because the lawyer blogged about the case.

For more on the story, go here.

Tuesday, August 4, 2009

More on the crisis of representation in cirminal cases

Here is another version of the story I reported earlier today about the public defender's office in California refusing to take cases for lack of resources. Go here for the story in Law.com.

How not to practice law: try to blackmail your opponents to get what you want

Blackmail is not a form of zealous advocacy. This is a simple principle apparently too difficult to understand for an attorney in Nebraska who was recently suspended for 120 days for attempting to blackmail a prosecutor to get the charges against his client dismissed. Interestingly, this is an attorney who had already been disciplined on two prior occasions - both for lying to the court.

As the Legal Profession Blog reports, the attorney wrote a letter to a prosecutor claiming that the newly-elected county attorney was in violation of the same law the attorney's client was accused of. The letter stated that if the charges were not dropped the attorney would file a motion requesting an investigation of the county attorney and included a draft of the motion. Finally, the attorney then stated that if the charges against his client were dismissed "Our lips, of course, are forever sealed."

The opinion is available here.

I have an additional comment on this case: is the sanction appropriate? I think this case is another example of the problem of an ad-hoc system of sanctions. Here is an attorney who has been disciplined twice already, who has demonstrated a pattern of conduct and disrespect for the court, his oath and the system. This is his third disciplinary case -- his second suspension. I don't understand why he his allowed to continue to practice law.

Access to legal services in criminal cases still in crisis

The ABA Journal.com is reporting today that the public defender’s office in Alameda County, Calif., is telling judges that it can no longer represent certain defendants because it doesn’t have enough lawyers to do the job and that public defenders in at least seven other states have refused to take new cases or have sued to limit the numbers. Full story here.

Monday, August 3, 2009

Prosecutor suspended for showing photos of rape victim

Prof. Jonathan Turley is reporting today that a County Attorney in Kansas was suspended from practice for six months after he showed pictures of a 17-year-old girl being raped to the parents of the alleged perpetrators over the objections of the victim's parents. The opinion is available here.

The prosecutor decided not to prosecute the offenders. He claimed "he had seen the damage underage drinking could do" and thought it would be better to show the photographs to the parents of teens depicted drinking at the party even though the victim's family objected. He also stated that he did not understand why other women and girls who believed themselves to be victims of sex crimes might now be reluctant to report the crimes or assist with prosecutions.

The victim's parents are now suing the County over the disclosure of the photos. I don't think I have seen any case where prosecutorial misconduct is the basis for tort liability. For the full story, click here.

ABA fixes problems with new Model Rule 1.10

As is well known by now, earlier this year the ABA approved an important amendment to Model Rule 1.10 which recognizes "screening" as an acceptable way to avoid conflicts of interest caused when an attorney joins a new firm. Soon after the amendment was approved, however, it became clear that the rule was drafted in a way that seemed to suggest that screening could be used to avoid conflicts in cases of concurring conflicts - which was never intended. Go here for my reports on the approval of the new rule and the problem in drafting.

Now comes word that the ABA has approved new changes to the new Rule to correct the mistake. In order to make clear that the rule applies only to laterally hired attorneys, the new rule would read as follows

Model Rule 1.10:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based upon a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and . . . .

Thanks to Legal Ethics Forum for the update.

Sunday, August 2, 2009

Should lawyer engaged in sex crime be disbarred?

A lawyer who works for the big firm Goldman Sachs has been accused of trying to arrange a sexual encounter with an undercover investigator posing in online chats as a 15-year-old girl. Should he be disbarred if convicted?

Interestingly, the New York Personal Injury Blog points out that although NY appellate courts generally issue unanimous opinions in cases dealing with ethics and lawyer disbarment, last December there was as a sharp divide in an identical case (See: Sex Offender Keeps Law License (Updated)).The Appellate Division, First Department ruled 3-2 that suspension was in order as opposed to disbarment.

New commission to review the ABA Model Rules again

Legal Ethics.com is reporting today that the ABA is about to undertake a new comprehensive review of the Model Rules of Professional Conduct. The new effort will be directed by the Ethics 20/20 Commission and will focus on issues related to globalization, including whether to allow multidisciplinary practice. For the full story go here.

Offensive form of advertising, but is it protected speech?

New Jersey's Committee on Attorney Advertising held a hearing Monday to decide whether legal ethics rules were violated by the placing of a lawyer's advertising leaflet on the windshield of a rape victim's car.

For the full story go here and for some comments go here.