Monday, March 29, 2010

Alternatives to the adversary system?

Here is the link to an interesting comment suggesting the need to change our approach to discovery disputes.

The problem? Here is how the author describes it: "Lawyers continue to become enmeshed in lengthy, adversarial discovery actions, believing them to be advocacy for their clients -- a path that increasingly leads to standoffs that must be resolved by the court. As a result, plaintiffs frequently prevail in their efforts to portray recalcitrant defendants as guilty parties who attempt to hide misdeeds by refusing to provide relevant information, when in fact much of that information is innocuous and ultimately will be discovered. Unfortunately, this "trial by discovery" has been honed as a tactic to divert attention from the merits of a case and onto presumed discovery failings, and -- in extreme cases -- as leverage for settlements."

The solution? Rethinking traditional discovery strategies to something along the lines of the "Sedona Conference Cooperation Proclamation" which holds that "cooperation in discovery is consistent with zealous advocacy" and which calls for cooperative, collaborative, transparent discovery and a refocusing of litigation toward the substantive resolution of the dispute."

For more information on the Sedona Conference and links to its documents, go here.

Speaking of frivolous litigation, how about frivolous legislation?

Prof. Jonathan Turley is reporting today (here) that the governor of Utah has signed legislation authorizing the state to exercise eminent domain over federal lands. Clearly a state has no authority to do this but it has not stopped the state from setting aside $3 million dollars to litigate to defend it. This clearly would be frivolous litigation. For the full story, click here.

"Virtual office" not good enough in New Jersey

Law.com is reporting today that two court regulatory committees in New Jersey have concluded that "virtual offices" do not satisfy New Jersey's bona fide office rule. This could affect large numbers of New Jersey practitioners, who work from their homes but need someone to take their calls and a conference room to meet clients. The committees concluded that virtual offices violate Rule 1:21-1(a). The Committee's opinion is available here. To read the full story, go here.

How not to practice law: get clients to give you title of their house so they avoid foreclosure, then get them evicted

The Legal Profession blog is reporting today (here) that the New York Appellate Division for the Second Judicial Department suspended an an attorney for four years for having his clients convey title to their home to him in order to avoid foreclosure and later evicting the clients while continuing to represent them in a family court matter. (Go here for the order).

Lawyering and expert witnesses in the tobacco litigation

Here is a link to a very interesting article in The Nation magazine about the use of experts in the "big tobacco litigation" cases.

On health care and frivolous litigation part 2

Following up on my comment below on whether the attacks on the constitutionality of the health care law are frivolous, here is a podcast of "The Breakdown" with Christopher Hayes in which he invites Columbia law professor Gillian Metzger to examine the validity of the constitutional attacks on the health care law. Also, here is a link to a debate on the subject published in the New York Times and to an article on in The Nation.

Friday, March 26, 2010

On health care and frivolous litigation

I am not a Constitutional law expert so I asked some of my colleagues about the lawsuits filed by several Attorneys General challenging the constitutionality of the health care bill. They all said without hesitation that the lawsuits are "a waste of time," "just for show" or "ridiculous." If this is the case, I wonder if any court will declare them to be frivolous and whether they will consider imposing sanctions. This could get interesting... Stay tuned.

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DC's IOLTA program will be mandatory

The IOLTA program in the District of Columbia used to allow attorney's to "opt out" from participating. This will no longer be allowed. Go here for the story in the Blog of the Legal Times and here for the story in the Legal Profession Blog. I wonder if the move will generate yet another challenge by the Washington Legal Foundation...

On inadequate representation of indigent clients

I recently wrote about a class action New York seeking to force the state to fulfill its obligation to provide competent legal representation to indigent defendants in criminal cases (here). (And now there is news of a similar case in Michigan).

Here are the first few paragraphs from an article in the National Law Journal.com on this issue:

"Last week, New York's highest court heard arguments in a class action challenging the legal representation of indigent defendants. The Michigan Supreme Court will consider a similar case in April. Both suits are part of a larger litigation strategy to force negligent states to live up to their constitutional obligations. In some places, the poor receive the facade of representation from overloaded, undercompensated defense attorneys.

At the same time, the Justice Department has launched an initiative to improve the representation of indigent defendants, led by Harvard law professor Laurence Tribe. The program could draw attention to those jurisdictions that skimp on their legal duty to provide competent counsel for indigent defendants.

The problem of inadequate representation is very real and must be remedied, but the difficult question is the appropriate role of the federal government. Although tempting, Congress should not throw more money at the states; instead, it needs to get out of this business altogether."

To keep reading this story go here.

I agree that states owe indigent defendants competent legal representations. The system is broken and something needs to be done. I am not sure what it is but something needs to be done.

Suspension for poor supervision and employee's mishandling of client's funds

In class we emphasize how important it is to handle client's funds properly. As everybody knows, mishandling clients' money is one of the most, if not the most, common grounds for disbarment. That part is easy to remember. Here is a story that reminds us of another aspect of this important duty. The lawyer can be disciplined (and liable) for an employee's conduct too. The ABA Journal.com is reporting today that a New Hampshire attorney has had his license suspended for six months because his paralegal allegedly embezzled $80,000 from clients. Go here for the story.

Thursday, March 25, 2010

The Nation on torture, lawyers and professional responsibility

Twice in the last couple of weeks the main editorial in The Nation magazine has been about issues related to professional responsibility.

The March 1 issue's editorial laments the failure of the Justice Department's Office of Professional Responsibility to recommend discipline for Jay Bybee and John Yoo, the principal authors of the initial "torture memo," concluding that "the report has been watered down to find only the exercise of "poor judgment" and does not recommend referral for discipline. Torture has been called many things before--chief among them a "crime against humanity"--but "poor judgment"? I bet they will also find that "mistakes were made." " The full editorial is available here.

The March 29 issue's editorial is a comment on Liz Cheney's attack on the values of the lawyers for Gantánamo detainees. It argues that the Dept of Justice should have celebrated the lawyers, "explaining (since it apparently needs repeating) that the American adversarial system depends on just such courageous conduct from lawyers willing to defend the least popular among us." And it calls Cheney's attack "scurrilous" and "so baseless [it] can be understood only as partisan demagoguery, designed to take the focus off the real culprits . . . who authorized [torture]." This full editorial is available here.

Monday, March 22, 2010

Supreme Court to review case on possible liability for failure to train prosecutors to perform their duties

The Blog of the Legal Times is reporting today that the US Supreme Court has agreed to review Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit affirmed a $14 million award for the wrongful conviction and death sentence of the defendant in a murder case.

The basis of the claim was that the defendant district attorney's office failed to train its lawyers on their legal and ethical duty to disclose exculpatory evidence, which resulted in the wrongful conviction of the then-defendant-now plaintiff. The opinion of the Court of Appeals is available here.

The BLT story states that current District Attorney Leon Cannizaro Jr. appealed the ruling to the Supreme Court, "asserting that upholding the 5th Circuit's decision "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct."" This is a strange argument since - according to the story - the claim is not based on vicarious liability. Someone here doesn't understand the concept of vicarious liability.

That misunderstanding aside, the case will be interesting to follow as it may have important implications for the concept of prosecutorial immunity and the extent of the possible civil liability in tort and ethical responsibility of the DA's office and its prosecutors. The case will be argued in the fall.

The case also has another interesting connection to issues of professional responsibility: the original case against the defendant was the underlying case in In Re Riehlmann (La 2005) often discussed in connection with the duty to disclose attorney misconduct under Rule 8.3. This was the case in which a former prosecutor, upon learning he was dying of cancer, finally decided to unburden himself and confess to a friend (Riehlmann) that he (the prosecutor) had intentionally withheld exculpatory evidence in a case that resulted in the imposition of the death penalty. That case was the case against Thompson, the then defendant-now plaintiff who eventually got the $14 million for the wrongful conviction.

So, let's recap. In 1985, a prosecutor withholds exculpatory evidence intentionally in a case against a man named Thompson, who is then convicted and sentenced to death. In 1994, the prosecutor confesses what he did to his friend Riehlmann (also a former prosecutor). Riehlmann does nothing about this for 5 years. After the exculpatory evidence is discovered in 1999, Riehlmann reveals what the former DA had told him. (Years later, Riehlmann is disciplined for his own misconduct in failing to disclose the prosecutor's misconduct). Eventually, after spending almost 20 years in death row for a crime he did not commit, Thompson's conviction is vacated, he is re-tried and found not guilty. Thompson then sued for damages arguing a violation of this rights under 42 USC Sec 1983 and was awarded $14 million. The Court of Appeals affirmed and now the Supreme Court will review the case in the fall.

Stay tuned...

UPDATE 3/26: Here is the story in Law.com

Saturday, March 20, 2010

How not to practice law: let the client dictate (bad) strategy

A few minutes ago, I posted a new addition to our list of examples of how NOT to practice law. Here is yet another one: allow a rich client with a lot of disposable income to dictate a litigation strategy designed to harass the opponent with excessive and improper discovery requests. In a recent case, reported in the Legal Profession blog (here), this (and other instances of miscounduct) cost the attorney a suspension and restitution of fees.

As is often the case in these "how not to practice law" cases, the underlying principle is a basic one. It is the lawyer's responsibility to tell the client when the client's goals are improper. Along these lines, in this case the hearing committee concluded that "[t]he respondent should have done far more than he did to restrain the client's overzealous pursuit of discovery with realistic, focused, and independent professional advice. Instead, the respondent voiced only limited objections and then continued to pursue the client's hopelessly excessive and improper discovery requests. Given the misguided strategy, the high fees generated little or no value for the client. While much of the respondent's work in this misdirected pursuit was competent, the cases went nowhere and the work was ultimately wasted. The gravamen of the misconduct here is that the respondent placed his interest in retaining a profitable client ahead of his professional duties as a member of the bar to effectively counsel clients and provide diligent, competent representation. As a result, the client's cases never advanced beyond discovery disputes despite the passage of years and the payment of high fees."

Bankruptcy Lawyers Troubled by Recent High Court Ruling

As I reported a few days ago, the Supreme Court upheld the application to attorneys of a federal law that bars "debt relief agencies" from advising clients to incur more debt for filing for bankruptcy. See here.

Here is an article on Law.com on how bankruptcy lawyers seem to be reacting to the decision.

How not to practice law: ask client to pay fees with sex

Here is the most recent addition to our running list of examples of how NOT to practice law. This is one we have seen before and it should be pretty obvious... but it continues to happen. Some people are just that dumb. Here is the thing, as stated in the story on Law.com, "Ethics rules allow lawyers to take payment in different forms from their clients -- cash, check, credit card. A naked back rub is not one of the options." Go here for the full story.

The story involves an attorney who at one point in the past was suspended for 15 months for making unwanted sexual advances toward clients and is now under investigation for allegedly having offered to waive a client's fees in exchange for a nude massage.

Go here for all the stories on how not to practice law.

Friday, March 19, 2010

Illinois Supreme Court interprets application of 'no contact' rule in criminal cases

The Supreme Court of Illinois published an interesting opinion today interpreting the reach of Rule 4.2 of the Illinois Rules of Professional Conduct, also known as the “no contact” rule, which bars a lawyer from directly contacting a party the lawyer knows to be represented by another lawyer in that matter to discuss the subject of the representation. The case is People v Santiago and it is available here.

In this case, a juvenile court appointed an attorney to represent one Evelyn Santiago in a child protection case seeking to declare Santiago’s two children wards of the court because she was suspected of child abuse. While that case was pending and based on the same facts that gave rise to the child protection case, Santiago was arrested for child endangerment. Then, in relation to that case, a State’s Attorneys questioned Santiago without contacting her appointed attorney in the child protection case. During this interview, Santiago made incriminating statements.

Santiago then argued in the criminal case that the State had violated Rule 4.2 and requested the exclusion of the statements made to the State’s Attorney outside the presence of the lawyer.

The trial court held that the State’s Attorney violated Rule 4.2, and suppressed defendant’s statements and the appellate court reversed the trial court.

The Supreme Court found that, even though Rule 4.2 applies to prosecutors in criminal cases prior to the filing of formal charges, it did not apply in this particular case. (It is interesting to note that for this reason the Court did not have a chance to decide the question of whether the suppression of a defendant’s statement would be a proper remedy to the violation of the rule in a criminal case.)

The State argued that Rule 4.2 did not apply because the lawyer was not representing the defendant in “the matter” related to the prosecutor’s interview. The defendant argued that there was such an integral relationship between the criminal and child protection cases that, pursuant to Rule 4.2, the State should have contacted the defendant’s attorney in the child protection case.

The Court sided with the State in its interpreation of the application of the Rule and concluded that, since the attorney had not been appointed to represent the defendant in the criminal matter, the defendant was, in fact, not represented in the criminal matter. Thus, the prosecutor did not violate Rule 4.2.

Thus, the Court interpreted the rule to say that a lawyer can contact a party directly to talk about a particular case even if the attorney knows the party has a lawyer, as long as that lawyer is not representing the party in that one particular case even if the the two cases are related matters. The Court explicitly states that “had the drafters of Rule 4.2 intended the parameters of the rule to be defined from a fact perspective rather than a case perspective, the drafters would have included language to that effect” and concludes that it the drafters had intended a different interpretation they would have used the words “same or a substantially related matter” in the rule.

In the end, as the Court puts it, “the fact that [the] attorney [in the child protection case] did not represent defendant in the criminal case at the time prosecutors questioned her is fatal to defendant’s claim that Rule 4.2 was violated in this case.”

Wednesday, March 17, 2010

NY case challenges adequacy of public defender system

Because an estimated 80 percent of felony defendants in large states are too poor to hire their own lawyers, a class-action suit to be argued next week in New York’s highest court has become a test of a national strategy by civil liberties groups to challenge what they say are failed public defender programs in many states. The lawsuit reportedly argues that the public defeder system is "dysfunctional, underfinanced and “in crisis,” with often poorly trained and poorly supervised lawyers handling huge caseloads" and says that "indigent clients have been failed by their appointed lawyers all around the state." Go here for the full story in the New York Times and here for a short version from the Wall Street Journal law blog.

Detainees' lawyers reply to Liz Cheney's attacks

Two former Guantánamo detainee lawyers have published an article commenting on Liz Cheney's campaign against the Dept of Justice for employing other former detainee lawyers. The article is available here. In the article, the authors state, in part:

"Cheney . . . should know better. She is a law school graduate and former practicing attorney. Her video contradicts more than 200 years of legal tradition, whereby American attorneys have served as counsel for unpopular clients, often without fee, in order to ensure that our country remains a place where there is "justice for all" — even those deemed our enemies. . . . .

. . . She asks: "Whose values do they share?"

It is hard to imagine a more reckless charge. Well, on second thought, we can think of one. Her video is reminiscent of similar tactics used during one of the darker episodes in American history, when Sen. Joseph McCarthy charged that those who insisted on due process for anyone he accused must be a Communist sympathizer or a closet enemy of the U.S. . . . .We believe history will judge Cheney's behavior as the equivalent of McCarthy's.

Our constitutional system of government requires that we afford due process to defendants even in times of genuine threat to our nation and attacks on our people. The courts depend on the willingness of lawyers to represent those accused of crimes, although their clients may be feared or hated. . . .

The lawyers at the Department of Justice who appeared on behalf of Guantanamo prisoners deserve our admiration and respect, as our country tries to resolve the difficult issues of how we will dispense justice to those considered to be our enemies. They certainly do not deserve to be called "al-Qaida lawyers," be labeled disloyal and unpatriotic or be disqualified from government service."


And to that, I say, "well said!" For my previous posts on this subject go (in order) here, here, here, here, here and here.

Illinois Supreme Court announces list of disciplined attorneys; here's what they did to deserve it

The Illinois Supreme Court has announced the most recent list of disciplined lawyers in the state. Seven were disbarred, nine were suspended, one was reprimanded and three were censured. For the full list of names and the location of their practice go here.

Here is a quick list of the types of conduct that resulted in the different sanctions:

Lawyers were disbarred for the following:

-criminal conviction for bringing contraband into a penal institution, possessing a controlled substance with intent to deliver, and possessing cannabis with intent to deliver.

-reciprocal discipline after disbarment in California for repeatedly filing frivolous lawsuits, pleadings and appeals.

-misappropriation of client funds, failing to diligently represent a client, making false statements to clients, and misrepresentations to the ARDC.

-reciprocal discipline after disbarment in Michigan for settling a personal injury matter without his client’s knowledge or consent.

-converting all of a client's trust assets, $30,656.73, for lawyer's own purposes.

-reciprocal discipline after disbarment in Michigan for neglecting a client’s immigration case, refusing to refund unearned fees, and failing to be candid with the disciplinary authority.

-lawyer entered a guilty plea to a charge of willfully assisting a client in filing a fraudulent United States income tax return that understated the client’s income by $478,098.

The lawyers who were suspended engaged in the following misconduct:

-neglecting a client’s immigration case, making misrepresentations to the client about the status of the matter and failing to appear and participate in the disciplinary proceedings.

-failing to communicate with two clients about their breach of contract claims and failing to cooperate with, or participate in, the disciplinary investigation.

-neglecting two different client matters, misrepresenting the status of one of those matters to his client, failing to carry out his duties in two cases where he had been appointed to serve as a guardian ad litem, and failing to cooperate with the ARDC.

-driving under the influence of alcohol (two convictions) (two different lawyers, same facts)

-convicted in state court on five misdemeanor counts of theft of client retainer monies.

-reciprocal discipline after suspension in Tennessee for conviction in federal court to conspiracy to defraud mortgage loan companies and financial institutions

-engaging in conduct involving battery when he made unsolicited and improper sexual advances toward both a female client and the wife of a second client; also breaching a fiduciary duty to both women clients and to a third client to whom he also made an unsolicited sexual advance over the telephone.

-mishandling settlement funds during a dispute with his former law firm partners over money that was due to each partner after the firm’s dissolution.

The lawyers that were censured engaged in the following misconduct:

-failing to promptly refund the unearned portion of fee advances he had received from several clients who had discharged him.

-preparing a will on behalf of a client giving himself and his wife a substantial gift.

-neglecting discovery obligations in a client’s dissolution of marriage proceeding, resulting in the imposition of monetary sanctions against the client, and he failing to inform the client of the entry of the sanctions.

The lawyer who was reprimanded had been informally admonished in Idaho for engaging in the unauthorized practice of law while she was a legal intern employed at a public defender’s office. At the time of the misconduct, she had not yet taken the Idaho bar examination. The Illinois Supreme Court imposed reciprocal discipline and reprimanded her.

Friday, March 12, 2010

New York Advertising Rules Held Unconstitutional


Breaking news from New York: the Second Circuit has announced it is upholding a lower court's ruling that New York’s lawyer advertising rules are unconstitutional (with two exceptions — fictitious law firms and the thirty day moratorium on lawyers contacting accident victims). Interestingly, I have argued before that the rule on the moratorium should have been declared unconstitutional. The opinion is available here.
For comments on the decision you can go to The Legal Ethics Forum, The NY Personal Injury Blog, and Public Citizen's Consumer Law and Policy Blog.

UPDATE (3/13) : here is the story in Law.com

UPDATE (3/14): here is a comment in Simple Justice

Supreme Court upholds law related to attorney speech

Last week, the Supreme Court upheld the application to attorneys of a federal law that bars "debt relief agencies" from advising clients to incur more debt for filing for bankruptcy. The case (Milavetz, Gallop & Milavetz v. United States) involves a law firm from Minnesota which argued that lawyers should not be covered by the law. The opinion is available here.

Here is a link to a short comment on the case: Thoughts on the Supreme Court's Bankruptcy Decision, Attorney Advice, and the Law of Lawyering (Legal Ethics Forum). This comment also has links to more comments (here, here, here, and here).

Missing deadline results in malpractice verdict

The Legal Profession Blog is reporting today on an interesting case that illustrates a problem that has bothered me for a long time.

The story starts with a high school teacher sitting in her living room when a small plane hit the roof of the second story of her home. She suffered no direct physical injury but went into a state of shock, which led to health problems. She retained an attorney to file suit against the pilot. The attorney missed the one-year statute of limitations despite reminders and also failed to comply with discovery obligations and court orders. The suit was dismissed. The teacher then sued her attorney for malpractice. A jury returned a verdict in her favor of over $5 million. The lawyer appealed. The Kentucky Court of Appeals affirmed the jury verdict of malpractice and punitive damages against the attorney but vacated some aspects of the damage award. In particular, the teacher's "case-within-a-case" proving negligence on the part of the pilot could not sustain a claim for punitive damages because of Kentucky's "impact" rule. The decision is available here.


I am very sympathetic to the plaintiff and I literally yell at my students that losing a case for a client by missing the statute of limitations deadline is one of the worst things they can do, but I have to say the court's conclusion here is not very convincing.

The court essentially contradicts itself. While saying that, to satisfy cause in fact, the plaintiff has to show that she "would have prevailed in the underlying case," it finds that the plaintiff meets the burden by showing that she "had a viable claim" and that she "lost the opportunity to maintain" it.

I am sorry but you can't have it both ways. If the law is that you have to show you would have WON the case, you don't meet that burden by showing that you "lost the chance to try to win it."

It is clear that the lawyer was negligent, but all that shows is that the plaintiff can show breach of duty. The court essentially found the evidence of breach so compelling that it felt it also showed causation. That, simply, makes no sense.

I have always thought that the standard should be that the plaintiff show he or she lost the chance to win (and that the injury should be an amount equivalent to the value of that lost chance), but, as far as I know, that is not the law in any state.

Are secret settlements unethical?

It is not uncommon for defendants to offer more money to settle a case if the plaintiff and the attorney for the plaintiff agree to keep the terms of the settlement confidential. Are these agreements unethical?

The American Association for Justice will explore this question in a "teleseminar" on March 16. For more information go here.

Thursday, March 11, 2010

Unethical conduct by Toyota in litigation?

Here is a short video (after a commercial) from CNN on an important aspect of the Toyota affair. It discusses the possibility that Toyota failed to disclose important and relevant documents in product liability cases.

New York Times publishes debate about the Guantánamo detainees lawyers at the Dept of Justice

The New York Times has published a lively and very instructive debate on the issues raised by the attacks on the Government for having hired former Guantánamo detainees lawyers for the Dept of Justice. The debate includes short Op-ed pieces by the very prominent authors: Alan M. Dershowitz (Harvard Law School), Stephen Gillers (N.Y.U. School of Law), Benjamin Wittes(Brookings Institution), Andrew C. McCarthy (legal affairs editor at National Review), Matthew Waxman (Columbia Law School), Kenneth Anderson law professor, American University. All the pieces can be found here.

You should read all of them, but in my humble opinion, the more interesting pieces are those by Waxman (on the side that criticizes the attacks on the government and the lawyers) and the one by Wittes (which defends that attacks).

Waxman states, in part, something I agree with - as I tried to, not so eloquently, suggest in my original post a few days ago: " If our counter-terrorism detention and prosecution policy is going to succeed in the long-term, it will be in part because of advocacy for the rights of terrorism suspects and adherence to constitutional and international legal standards, not despite it. For example, to promote cooperation from our international allies and partners — law enforcement, detention policy and other forms of cooperation — the legal processes involved must be viewed as legitimate. Zealous legal representation is critical to that legitimacy. Portraying legal advocacy for detainees as contrary to national security interests is short-sighted and a one-dimensional perspective of a complex set of issues, viewing law as a constraint on American power rather than often a source of it." Read his comment here.

McCarthy replies by stating, in part: "Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans. Unlike criminals, war prisoners aren’t entitled to lawyers. This is a ludicrous concept, so the profession has to engage in serial deceptions to sell it. Most prominent among these is the assertion that every one, no matter how unpopular, is entitled to counsel. Nonsense." Read his comment here.

Wednesday, March 10, 2010

Meet a Guantánamo detainee lawyer

Here is an interview from a few years ago of an American lawyer who volunteered to represent Guantánamo detainees before the Supreme Court. I don't know if he is one of the lawyers in the middle of the Liz Cheney/"Al Quaeda 7" controversy, but I think the interview is relevant to the discussion. He makes a very eloquent argument for why lawyers who defend unpopular clients do it and, I think, for why we should be praising their work. The interview is only about 6 minutes long.

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The debate about Liz Cheney's attacks on DoJ lawyers continues

Over at the Legal Ethics Forum, Prof Andrew Perlman (Suffolk Univ Law School) has posted a short, but very good comment on the issue (available here), in which he argues a similar position to the one I tried to argue in my original post on this whole affair. His argument is as follows: "We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values. Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law. Lawyers who endorse those values should be praised, not criticized. In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. Liz Cheney, therefore, is right about one thing: the work of the "al-Qaeda 7" lawyers does reflect their value judgments. By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced. And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals."

Meanwhile, more and more articles, posts and op-ed pieces are getting published on this same issue. Here is a list of some of the ones I have seen today. Because there are so many coming out every day, rather than posting anew every time I come accross a new article I will just add it to this list, so keep checking this post if you want the latest....

New York Times story

Op-ed from former Attorney General Michael Mukasey

Op-ed piece by Marc Thiessen (supporting Liz Cheney)

Reply to Thiessen's article by Prof. David Luban

Article in the Wall Stree Journal Law Blog


Thanks to John Steele for some of these links.

In Search of Volunteer Lawyers for Death Row Inmates

In Search of Volunteer Lawyers for Death Row Inmates... Go here for the full story.

Monday, March 8, 2010

More on the controversy over Dept of Justice hiring former detainee lawyers

Here is a segment from last Friday's TV show Countdown with more details on the controversy and the reaction to the video:

Visit msnbc.com for breaking news, world news, and news about the economy


Here is a segment from today's show in which Ken Starr discusses the letter I mentioned in the previous post:

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More debate as to the attacks on the Dept of Justice lawyers

A group of well-known conservative lawyers have signed on to a letter chiding Liz Cheney as well. The letter states, in part:

"The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications. . . . . To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit. Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. "

The full letter is available here.

Meanwhile, the Blog of the Legal Times is reporting today that "[p]rominent former Department of Justice officials are joining the growing criticism against efforts to question the ethics and loyalty of current DOJ attorneys who, in private practice, had advocated for Guantanamo Bay detainees." Go here for the full story.

For more on this story (and other interesting links) to the Wall Street Journal law blog (March 5 and March 8 story, Politico, and another story in the Wall Street Journal law blog.

The New York Times also published an Op-ed piece (here) that begins thus: "In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within."

When you check out these stories don't forget to look at the comments readers have posted about them.

Support legal aid in Illinois

From the Illinois State Bar Association blog:

"Gov. Quinn will announce his budget plan for fiscal year 2011 on Wednesday, March 10. For the first time in state history, the governor’s office has launched a website to gather public comment on what to include in the budget. This is a chance to let the Gov. know the importance of civil legal aid in our communities. The Governor’s office is tracking the issues so your voice will be heard. The Illinois Equal Justice Foundation’s appropriation for civil legal aid was cut 50% this year – from $3.5 million to $1.75 million. Eight long-standing grantees were cut, no new programs were funded and the awarded grants were reduced 20%-79% compared to 2009. This means 37,000 fewer people will have their civil legal needs met at a time when legal aid is needed most. Click here to post your comment to the Governor’s budget website."

Sunday, March 7, 2010

Controversy over Dept of Justice hiring former detainee lawyers

By now I am sure you have heard the controversy and debate generated by a video that criticizes the Obama administration for hiring lawyers for the Department of Justice who had represented Guantanamo detainees in the past. The video, released by a group called Keep America Safe (whose board members include Elizabeth Cheney), questions the lawyers’ loyalty to the United States, calling the Department of Justice "Department of Jihad" and asking “Whose values do they share?"

In a way, we should not be surprised by this kind of attack since the previous administration spent a lot of efforts critizing, attacking and trying to control or punish attorneys who worked to help Guantanamo detainees. A lot of attention was given back then to comments challenging the “loyalty” of attorneys who volunteered for such work. There is a lot of literature out there you can find to get more information about that, including a short article by Jesselyn Radack called “A Blacklist’s Real Face” published in The National Law Journal on February 19, 2007 in which the author describes her own experience of retaliation after she exposed unethical conduct by lawyers in the DoJ for which she was branded a traitor and supporter of terrorism. Sounds familiar?

Now, Liz Chaney and her friends are back at it again calling the lawyers who formerly represented detainees “The Al Qaeda Seven.”

The attack on the administration and on the lawyers themselves is obviously hypocritical (the Bush administration also hired lawyers who had represented detainees) but, more importantly, it is based on just plain ignorance of what it means to be a lawyer and to believe in and defend the rule of law and the Constitution. I am happy to see that it has been strongly denounced by so many so quickly, including by lawyers prominent in the previous administration.

In Liz Cheney’s world, detainees would not have any rights. She has decided they do not deserve to be afforded due process. We should create sham judicial proceedings or "kangaroo courts" that would deny due process rights in the name of expediency. In her world, we should deny rights to terrorism suspects, at least in part, because terrorists do not respect the rights of others.

But, here is the thing, that is what makes them terrorists. Liz Cheney would want us to do the same. She wants us to be more like them. It is her who is expressing anti-American values!

As I said in a previous post, I greatly admire attorneys who make a commitment to represent truly unpopular clients. It takes courage, determination and conviction and represents the best of our profession.

I commend the administration for recognizing the value of commitment to doing the right thing, to defending the rights of the accused, to defending the constitution and that which makes our legal system fair and valid. I am disappointed, on the other hand, to have heard reports that the administration is considering abandoning its decision to conduct criminal trials in favor of military tribunals; but that is a different issue we can talk about some other time....

Here are the links to an article in the Blog of the Legal Times on the controversy over the video and to one in the ABA Journal.com in which ABA President Carolyn Lamm criticizes efforts to smear the reputation of the Justice Department lawyers. Here is the link to an op-ed piece in the Washington Post called "A Shameful Attack on the US Legal System."


UPDATE: Here is a copy of the video that started the whole controversy:




UPDATE #2: My wife read this and asked me to post something on her behalf. Here is what she wants to say: “Liz Cheney can kiss my ass.”

Friday, March 5, 2010

Podcast on IOLTA Accounts

Here is a link to a very informative podcast on the many details that relate to keeping IOLTA accounts. You can listen to the presentation online or download for later use. Either way, you can find the program here.

Attorney for defendant in Fort Hood shooting starts a blog

CNN is reporting here that John Galligan, the attorney for the Army psychiatrist implicated in a shooting at a Texas military base, has responded to a military gag order by starting a blog on the case. More here.

For his dedication to his role, Simple Justice praises Galligan stating that "Galligan's representation of Hasan reflects the best of our profession. It's not about his personal definition of justice, but about his duty to his client. . . . By creating [the] blawg, John Galligan made clear that his duty is to zealously represent his client, and that the villification of Hasan in the media requires some degree ot leveling the playing field, whether the Army agrees or not. John Galligan is unapologetic for being Nidal Hasan's defense lawyer, and is clearly willing to face the consequences for doing his job well."

I greatly admire attorneys who make a commitment to represent trully unpopular clients. It takes courage, determination and conviction. Go take a look at the blog and particularly at the comments that people are posting to get a sense of how difficult it can be to zealously stand up for the rights of the accused.

Monday, March 1, 2010

Ethics opinion on the relationship between a lawyer representing a client with diminished capacity and a guardian at litem

A new ethics opinion (no. 353) from the District of Columbia (available here) examines whether a lawyer representing a client with diminished capacity can seek the appointment of a substitute surrogate decision-maker when the current surrogate decision-maker is making decisions for the client against the advice of the lawyer.

It concludes that "A lawyer representing an incapacitated person with a surrogate decision-maker should ordinarily look to the client’s chosen surrogate decision-maker for decisions on behalf of the client and accord the surrogate decision-maker’s choices the same weight as those of a client when the client is unable to express, or does not express, a contrary view. A lawyer may not substitute her judgment for the judgment of the surrogate decision-maker when the surrogate decision-maker is acting within the scope of the power afforded to her by law, was selected by the incapacitated person before becoming incapacitated, and is not engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner. If the surrogate decision-maker is engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner, then the lawyer may take protective action including seeking a substitute decision-maker. The lawyer may not withdraw because a withdrawal will substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist."

Thanks to the Legal Profession blog for the information and link.