Friday, February 26, 2010

LegalZoom Sued in Class Action for Unauthorized Law Practice

IP Watchdog is reporting that "LegalZoom" was sued in Missouri for engaging in the unauthorized practice of law (for a copy of the complaint go here). Go here for the full story.

Thanks to Legal Ethics Forum for the information and links.

Why don't lawyers call back?

The two most common complaints about lawyers are usually that their fees are too high and that they don't keep the client well informed about the status of the case. Clients typically say they would like the lawyer to call them (or to return their calls) more often. So why do lawyers don't call back? Here is one lawyer's semi-serious explanation.

Death penalty reversed in case in which the judge and prosecutor were dating

Back in September 2009, I commented on the news that the Texas Court of Criminal Appeals — the state’s supreme court on criminal matters — ruled that a man facing the death penalty would not get a new trial despite the fact that the prosecutor and the judge were involved in a romantic affair during the trial. See here.

The Associated Press is now reporting that the Texas Court of Criminal Appeals has reversed itself and has ruled that the death sentence should be overturned and the defendant is entitled to an new sentencing phase.

Interestingly, though, the decision makes no mention of the affair between the judge and prosecutor. Go here for the AP story.

Wednesday, February 24, 2010

Public defender story

From a story in Simple Justice Blog:

A new blawg, Public Defender Revolution, has joined the blawgosphere, with an interesting 6 year old tale of being pushed to trial unprepared. By the somewhat anonymous "carol d" a 15 year veteran of the trenches:

"Six years ago, when a judge ordered me to conduct a trial for which I was not prepared, I was shocked. . . Before that day, I knew that a judge would respect the fact that I had conducted over 100 jury trials, and that when I said I wasn't ready, I wasn't ready. And if I wasn't ready, it would be unconscionable to order me to trial."

The judge rejected her request for time.

"When the judge denied my motion to continue, I was dumbfounded—the judge had just been appointed to the bench and had never practiced criminal law, but I didn't know what to do when he said, "I understand why you are not prepared, Ms. Defender, and I find it is not your fault, but the citizens of Washington have the right to have this matter resolved, and you have to start the trial on Monday.""

Her reaction to this order was to post a "panicked" inquiry to the Washington Association of Criminal Defense Lawyers, an association she had recently joined, looking for "support and advice."

"After considering the advice—most of which was to proceed with trial while making a careful record—I decided that I was going to refuse to conduct the trial."

She then explains:

"This post isn't about that decision process (because many of the factors were case-specific), but my philosophy can be summed up by the "You Can't Make Me" icon: You can't give me too many cases, too many clients, too many prosecutors, and then tell me I have to conduct a farce of a trial when you know I am not ready. A system that will force me to betray my client by failing to represent him adequately at trial, is a system I won't play along with. You can't make me fail my client."

Ultimately, carol d's trek through judicial coercion, panic and bad advice to the ultimate decision to put the client's interest first, to not "fail [her] client," isn't unique, but a fascinating insight into the fortitude required of the criminal defense lawyer and the obstacles in the way.

The story bears similarities to the Portage, Ohio public defender who was ordered to go to trial on one day's notice and refused. He was held in contempt and jailed for his insolence.
Continue reading this story here.

How not to practice law: park in the handicapped parking spot

Here are two additions to our running list of ways NOT to practice law. I'll let the headlines speak for themselves.

Lawyer Suspended for Using Client’s Handicapped Parking Permit (also here)

Judge Accused of Paddling Defendants Is Disbarred
(interesting note about this case: this former judge is now campaining for state senator)

Sunday, February 21, 2010

Judicial appointments for prosecutors who had been disciplined for misconduct

The criminal defense law practice blog "Simple Justice" has an interesting story about two prosecutors who intentionally ignored and withheld exculpatory evidence in order to obtain a conviction. The conviction was later overturned when it was proven that the defendant was innocent (by using DNA evidence). The defendant sued the county where this happened and the county settled with the defendant for $4.1 million for his wrongful murder conviction. And, after all this, the prosecutors were appointed to the bench.

As Simple Justice points out, ". . . that they convicted an innocent man, withheld exculpatory evidence, were censured for it and then, after all that, moved on to be judges, is just too much to take. . . . To not penalize [them] is bad enough, but to reward prosecutors who engage in misconduct is beyond the pale."

Go here for the full story.

Saturday, February 20, 2010

No discipline for torture memo authors

As you all probably know by now, the big news this week is the fact that the Office of Professional Responsibility of the Dept of Justice issued its report concluding that Justice Department lawyers did not commit professional misconduct by writing legal memos that authorized the use of torture by US officials. The conduct of the lawyers in authoring the so-called "torture memos" has been widely criticized by professional responsibility experts as a violation of basic principles of the profession including the duties of competence, honesty and independent professional judgment. For examples of this, you should take a look at the testimony of Prof. David Luban before the House Judiciary Committee on May 6, 2008 (here) and the
and the brief filed by several Prof Responsibility professors in the Padilla v Yoo case (available here.) (My thanks to the Legal Ethics Forum for that link)

For a detailed discussion of the memos and many helpful links go here. For more on the story and some critical commentary go here, and here. For a comment by Prof. Jonathan Turely on the tv show Countdown go here.

The original OPR report concluded that former Assistant Attorney General Jay Bybee of the Office of Legal Counsel committed professional misconduct and that his deputy, John Yoo, committed intentional professional misconduct. Go here for a copy of the OPR report. But Associate Deputy Attorney General David Margolis rejected those findings. Go here for the report.

Interesting story of romance, conflicts of interest and dishonesty

The Legal Profession blog is reporting today an interesting story.

The story starts with an attorney who began to date a guy she had met at the gym. Unfortunately, the attorney did not know that her firm was representing the guy's wife in a divorce action. (I wonder if it ever came up in conversation that he was still married (and that he had two minor children)...?).

When she learned of the firm's involvement in the divorce case, she disclosed the relationship to the partner handling the case and offered to be screened from the representation. The partner told her to either end the relationship or leave the firm.

The attorney agreed to cease dating the firm's client's husband and stayed with the firm. The partner advised the client of the situation (assuring the client that the relationship was over) and, after consulting other counsel, the client agreed to continue with the firm as counsel.

However, the attorney and the husband resumed the relationship. The firm fired the attorney and the Professional Responsibility Board imposed a six month suspension for her dishonest conduct in attempting to keep the relationship secret from the firm. The panel stated the attorney did not seem to understand the issue of the case and that she did not understand nor acknowledge the wrongful nature of her conduct. Go here for a copy of the opinion.

How not to practice law: lie

I have noted before that lying to the disciplinary committee is never a good idea! See here. Now the Legal Profession blog is reporting a new case that brings up the same issue. In this case, the referee commented extensively on the attorney's lack of candor throughout the disciplinary proceeding. The referee found the attorney's testimony under oath at various times to be "deliberately evasive; inconsistent and contradictory; and false, incredible and impossible to believe." OUCH! That is not a good sign... Go here for the full story.

Saturday, February 13, 2010

Former bank robber applies to law school

Here is a link to a story in the New York Times about a former bank robber who became a "jailhouse lawyer" (an inmate who prepares petitions for other inmates) and is now applying to law school. Let's assume he gets accepted, graduates and passes the bar, should he be allowed to practice law? Should he be approved by the "character and fitness" authorities?

This is an interesting question in and of itself, but here in Illinois it is even more interesting given the approach taken by the Supreme Court in the famous (or infamous) Matthew Hale case. As you may remember, in that case, the court refused to hear Hale's appeal after he was denied admission by the C & F committee because of his racist views.

One question raised by the only dissnting judge in the Hale case was whether it was proper for the committee to deny admission when the candidate had not engaged in conduct that would get a practicing lawyer disciplined. Given that the court denied review, the question was never answered.

Now, let's go back to the bank robber's case. It is pretty obvious that a practicing lawyer who is convicted of robbery would be disbarred. (Go here for such a case.) So, based on that alone, you'd think that the bank robber would not pass the C&F review.

But then there is the question of whether we should consider what has happened since the conviction. Should we recognize that it is possible for people to be rehabilitated, to have the necessary good character now even if they didn't at some point in the past?, etc.

The character and fitness review process is based on the notion that we can have a good idea of how people will act in the future by examining what they have done in the past. Many would argue that this is debatable, or that, at the very least, it is something to be decided on a case by case basis.

So, we don't admit racists to practice law; should we admit a convicted (presumably rehabilitated) bank robber?

I saw this story in the Legal Ethics Forum. Go here to read the comments.

Tuesday, February 9, 2010

ABA misses the mark on resolution about criminal justice system

The ABA annual meeting was held recently and the House of Delegates announced 9 criminal justice resolutions. One of them bothers me. It says that Judges are encouraged to “conduct a conference with parties in a criminal case prior to trial, advising them of their respective disclosure obligations, such as the obligation of federal prosecutors to disclose information under Brady v. Maryland and related case law.”

Before I explain what bothers me about this, let's remember that there is a specific rule of professional conduct that spells out clearly the duties of prosecutors particularly the duties of disclosure and the notion that the prosecutor is a 'minister of justice.' All prosecutors are expected to know their duties and to act according to them. Failure to either know them or abide by them can, and should, be the basis of disciplinary action.

So, here is what bothers me about the resolution. First, there's the notion that we need to remind prosecutors that they need to comply with their duties. Then, more importantly, there's the fact that if prosecutors are not complying with their duties what the ABA should be encouraging judges to do is to impose severe sanctions on those prosecutors who either do not know their obligations or who act in disregard of their obligations!

Friday, February 5, 2010

Prosecutor is immune from civil liability even though guilty of hiding evidence

The Court of Appeals for the 6th Circuit has held that a former federal prosecutor who was tried and acquitted of conspiring to hide evidence in a terrorism case is immune from civil liability because of his prosecutorial role on the case. The case is Koubriti v. Convertino and it is available here. For more on the story go here.

Illinois Supreme Court recognizes a possible claim for ineffective assistance of counsel

The Supreme Court of Illinois has found that a convicted defendant has alleged enough facts to support a claim of ineffective assistance of counsel and remanded the case for further proceedings.

In this case, the defendant was convicted after a bench trial for attempted first degree murder and the appellate court affirmed. The defendant then filed a pro se postconviction petition, claiming that his trial attorney was ineffective in failing to request a hearing on his fitness for trial. The circuit court summarily dismissed the petition as frivolous and patently without merit, and the appellate court affirmed.

However, the Illinois Supreme Court held that the petition should not have been dismissed because it had stated the gist of a constitutional claim. The Court found that the petition met the burden of proof because it alleged that the defendant had told his trial attorney that he had been taking medication for bipolar disorder and depression and that he had previously attempted suicide. The defendant also alleged that he had been under medication at the time of his trial and that his attorney lied in claiming to be unaware of this. Attached to the petition were affidavits from defendant’s mother and aunt indicating that counsel had been informed about defendant’s bipolar medications and suicide attempts.

Based on this record, the Court found that the claim of ineffective assistance of counsel in failing to seek a fitness hearing was sufficiently supported. The Court remanded for postconviction proceedings in which the lower court would have to determine whether to hold an evidentiary hearing. The case is People v. Brown and it is available here.

Last year the Illinois Appellate Court sided with defendants who claimed ineffective assistance of counsel in at least twice. See here and here.

How not to practice law: get married when you are already married

Here is an interesting addition to our on-going list of "how not to practice law".... The Legal Profession Blog is reporting that the Supreme Court of Ohio recently imposed a six month suspension on an attorney who while in the process of divorcing his first wife "exercised poor judgment by deciding to go ahead with [his] wedding" to a new wife. For more on how not to practice law, go here.

Client autonomy in criminal cases

Next week I will be discussing the concepts of "client autonomy" and the "allocation of authority" within the attorney-client relationship in both civil and criminal cases. Coincidentally, the Legal Ethics Forum has posted the abstract of a new article on the subject by Erica Hashimoto titled "Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case." Go here for the description of the article.

New article on the constitutionality of IOLTA programs

IOLTA programs are a mechanism for funding legal services for the poor. They require attorneys to place certain funds in interest generating accounts and banks to provide the interest to an agency that uses it to provide funds for legal services. All states have IOLTA programs. This approach to raising funds for legal aid has been under attack by opponents of legal aid for years. Here is a link to a post in another blog which discusses a new article on the subject.

Monday, February 1, 2010

Update on disbarment for not taking role of juror seriously

Back in July I posted that the California Supreme Court has disbarred an attorney who reportedly changed his vote during jury deliberations simply to end a tie because he was tired of serving as a juror. See here. Today, the Legal Profession Blog posted an update on this story (here) which includes two interesting new pieces of information: (1) shortly after his trial before the bar on the misconduct as a juror, the attorney had been suspended for stealing money from a client and (2) the attorney now has filed a federal civil rights action against the Supreme Court, the State Bar Court and the bar attorneys handling his case. Stay tuned...