Friday, April 30, 2010

Ohio adopts new rules for discovery in criminal cases

There is a very important development to report in Ohio. The Ohio Supreme Court has filed with the Ohio General Assembly final amendments to rules of criminal procedure that call for a more open discovery process. The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Go here for more information.

How not to (leave the) practice (of) law

Adding to our ongoing list of posts on "how not to practice law," here is the story of a lawyer who decided to leave the practice of law but forgot to tell her clients.... For this, the South Carolina Supreme Court imposed a definite suspension of no longer than two years and ordered restitution in one of the pending matters. The Court's order is available here.

Thanks to the Legal Profession blog for the information.

Avoiding problems when withdrawing from representation

There are two items of interest in todays' news on terminating the representation of clients:

Here is a link to an article published in the May 2010 edition of the Illinois Bar Journal on ethical issues related to the termination of representation.

Secondly, here is the link to a story of an attorney who decided to leave practice to become a high school teacher. Nothing wrong with that.... Only that she forgot to notify her clients, opposing counsel, or the courts that she had ceased practicing law.

Using false evidence?

Your client's mother says your client was at home asleep at the time of the crime for which the client is on trial. She honestly believes the client was at home. However, your client told you he climbed out the window after his mother checked on him. Your client will not testify at trial. Can you use the mother as an alibi witness?

Here is George Constanza's view on this:

Thursday, April 29, 2010

NY Times on Supreme Court's denial of review in death penalty case during which the judge and the prosecutor were dating

Will Texas really execute a defendant when the judge and prosecutor had an undisclosed romantic relationship? Here is a link to an editorial published in the New York Times on the case. For my previous post on this case go here.

Wednesday, April 28, 2010

Conflict of interest in Toyland

Nintendo Co. has asked an Arkansas federal judge to disqualify a law firm in a patent infringement case because the firm allegedly learned confidential information about Nintendo through a joint defense agreement on another case. Go here for the full story.

Monday, April 26, 2010

Bar Leaders Ask Congress To Boost LSC Funding

The Blog of the Legal Times is reporting that the presidents of 61 state and territorial bar associations and their counterparts at five national bar associations have sent a letter to Congress asking for increased funding for the Legal Services Corp. The bar leaders say more funds are needed to cover a growing gap in aid that has been confirmed by recent studies. For example, according to a 2009 report, LSC programs will not be able to meet the legal needs of about 944,000 poor people seeking assistance in 2009, slightly more people than the programs served in 2008. In one category -- foreclosures -- LSC-funded programs were projected to turn away two for every person served. Programs also would take up fewer than half of the requests for help with employment and family law matters, according to the report. For more on this story go to the Blog of the Legal Times (here).

Sunday, April 25, 2010

Domestic abuse and the practice of law

Here are two recent stories involving domestic abuse and the practice of law.

In the first one, an Illinois hearing board recommended a two-year suspension without automatic reinstatement for, among other things, two incidents of domestic violence. In one, the attorney pleaded guilty to domestic battery for hitting his wife and in the other he was arrested for hitting his daughter. The charges in the second case were dismissed because the daughter refused to cooperate with the prosecution. See here. For more on this story go to the Legal Profession Blog.

In the other one, the Nebraska Supreme Court denied the application for admission of a 2008 graduate of the University of Nebraska Law School because of what it called "a pattern of abhorrent behavior towards women." Three women (in nine years) had sought protection orders against the applicant. The Commission found, and the Court agreed that hed did not meet the standards of character required for admission to the bar. The decision is available here. For more on this case go to the Legal Profession Blog.

Friday, April 23, 2010

Top eight reasons to do pro-bono work

Attorney Dawn Levine has published an article in Small Firm Business on why it is a good idea to engage in pro bono work. Go here for the full article. Here are the top eight reasons the title refers to:

"Don't get me wrong, I like to make money as much as the next guy. However, I sometimes work for nothing. . . . I gave some thought to why I do. Here is my top eight list:

1. For every pro bono case you take, that is one attorney joke that is undermined.

2. Pro bono allows me to continue to pay my mortgage and still hold on to my dream of changing the world. While I can't afford to work full time in public service, I can find time for a case here and there.

3. Democracy demands it. If our legal system is not made to work for even the most economically vulnerable, then it ceases to be just.

4. God does not really care if I am "this close" to a billable hours bonus. I don't get a pass just because I am busy.

5. The economy stinks. Unemployment and foreclosures are mushrooming. Creditors are becoming increasingly aggressive. More people than ever with legal needs qualify for pro bono services.

6. The economy stinks, parte dos. Budget cuts have reduced government help to low-income people. Funding for full-time public service attorneys is drying up while donations to nonprofits are going down. Society's safety net for our most vulnerable is fraying.

7. It makes me a better attorney. When I was in law school, we did not discuss what happens in a probate case for a bigamist. I had to figure this out for a pro bono case. Believe it or not, I have since seen it twice more with paying clients.

8. It recharges my batteries. I haven't conducted a scientific study of the subject, but I am convinced that attorneys who participate in pro bono work have greater career satisfaction."

Prosecutor's comments result in reversal of conviction

The Legal Profession Blog is reporting today on a recent case in which the New Jersey Appellate Division has reversed a a conviction because, among other reasons, the prosecutor had improperly vouched for the credibility of a police officer during summation. The case is State v Murphy and it is available here.

In this case, defense counsel attacked the police officer's credibility by arguing that his version of the events was incredible. Defense counsel suggested that noone would have done what the police officer claimed the defendant did (approach two people who were clearly identified as police and drop coccaine right in front of them). In reponse to those comments, the prosecutor stated during his summation that the police officer had no incentive to lie, a statement to which defense counsel promptly objected.

The court held that stating to the jury that the police have no incentive to lie is a statement of the very same character as those the New Jersey Supreme Court has deemed improper.

Pharmaceutical company goes after defeated plaintiff

Back in 2007, 7-year-old Kristen Spears, who suffered from cerebral palsy, was administered a series of therapeutic Botox shots to relax the girl’s clenched limbs. She died. Her mother sued Allergan, the drug's manufacturer arguing that it had concealed information about the dangers of the drug. But a jury in Santa Ana, California, decided last month Allergan wasn’t responsible for the girl’s death in 2007 death. And now Allergan wants to recover $460,000 in legal costs from the mother. Given that the Spears case was the first to come to trial of 15 plaintiff lawsuits accusing Allergan of hiding the dangers of Botox, it is pretty clear the drugmaker is trying to send a message to other plaintiffs to back off.“I’ve been a lawyer for 25 years, and I’ve never seen anything more outrageous than a corporation pursuing this lady for $460,000,” Spears’ attorney, Ray Chester, tells The Orange County Register. “It’s the worst case of corporate bullying I’ve ever seen.”

What is the potential benefit of this conduct, given the negative publicity it has generated already? I wonder if it was suggested by the trial lawyer, in-house counsel or the entity client itself. Go to Pharmalot for more on this story.

Wednesday, April 21, 2010

Supreme Court denies review in death penalty case during which the judge and the 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 Court then reversed itself and remanded the case for a new sentencing phase - not for a new determination of guilt. See here.

The case was then appealed to the US Supreme Court and today it denied review without comment.

For more on this story go to The Blog of the Legal Times, Simple Justice,, Ethics Alarms, Grits for Breakfast, the Legal Ethics Forum and CNN.

The overall reaction to the news is negative. Legal Ethics Forum calls it "disappointing news." Simple Justice states: "It's enough to know that the justices of the Supreme Court are romantics at heart, and not even an execution can stand in the way of true love."

Ethics Alarms concludes that "for the public to trust a system that can take away a citizen’s liberty and life, it has to be seen as trustworthy. The Hood case . . . threatens the integrity of the justice system itself."

Tuesday, April 20, 2010

Comment on prosecutorial misconduct

Long time followers of this blog might remember that last year there were a lot of reports of prosecutorial misconduct. I have not heard many reports this year, but here is a comment (from the website Ethics Alarms) published today about prosecutorial misconduct in general and a case in Virginia in particular.

Stuff you hear in court

"On the Record in Cook County" is a blog that posts comments overheard in the courtrooms in Cook County, Illinois. Here are a few recent entries:


Judge - It would be helpful if the State would read the law, or the defense for that matter.


State (during a bench trial, crossing the defendant) - And then you heard someone yell 'police,' right?

Defendant - Do you want an honest answer to that question?

State - Have you not been giving honest answers so far?


Judge - Why did you plead guilty to a misdemeanor when you knew it would violate your probation?

Defendant - I didn't want to.

Judge - What was the rush? Did you have a lawyer?

Defendant - No.

Judge - Don't say what I think you're going to say. Who did you step up with then?

Defendant - A public defender.

Judge - Yeah, that's what I was afraid you would say.

Friday, April 16, 2010

What not to wear

Can your shirt defeat your right not to incriminate yourself?

Thanks to Jonathan Turley...

Saturday, April 10, 2010

Sanctions for failing to tell opposing party that client had died

Two days ago, the Minnesota Supreme Court decided a case similar to Virzi v Grand Trunk, a case assigned for our next class. In the Minnesota case, In re Lyons, the Court imposed an indefinite suspension with no right to apply for reinstatement for at least 12 months because the attorney failed to advise opposing counsel that his client had died prior to reaching a settlement of the client's claim. The case is different than Virzi, however, in that the attorney forgot a basic "rule." When you make a mistake, don't lie about it.

The attorney revealed the client's death to the opposing party after the settlement agreement was signed and executed by the client's wife as personal representative of the estate. Yet, after the bar complaint was filed, the attorney falsely responded about when he learned of the client's death. It also did not help the attorney's case that he had racked up seven prior sanctions since 1994.

Thanks to the Legal Profession blog for the information.

Friday, April 9, 2010

No insurance coverage for misconduct re fees

A recent Illinois Appellate Court decision has held that no coverage was available to an attorney under a lawyer's professional liability policy, for claims against the attorney in either a civil suit or a disciplinary proceeding, based on allegations that the attorney charged a contingent legal fee in excess of that allowed by statute. The case is called Continental Casualty Co. v. Donald T. Bertucci, Ltd., 2010 WL 1033448 (1st Dist. 2010).

What was wrong with the April Fools joke analysis

I have been asked by some of my students to explain why I think the argument advanced by those who attacked the lawyer involved in the April Fools joke discussion was wrong. If you don't know what this is all about go here and here.

I'll try to keep it brief. The argument advanced by the guy in Ethics Alarms was very simple: lying is bad, thus lying is unethical; the April Fools joke was a lie, thus the lawyer acted unethically. It is a categorical argument, based on a value judgment of the conduct involved. What is wrong with the argument is that legal ethics rules are neither categorical nor consequentialist. That is, they are neither based on any pre-determined value judgment of the attorney's conduct nor dependent on a particular consequence or result. They are contextual. They depend on the circumstances. In some cases, lying is okay (as in lying about wanting to rent an apartment to determine if the landlord is discriminating), while in others it is not (as in lying in court).

In addition, when it comes to conduct outside the practice of law (and under Rule 8.4, which was cited in the debate about the joke in question) courts have always limited their evaluation of a lawyer's conduct to the relationship between the actual conduct and the lawyers ability or capacity to practice law. In some cases, a lawyer's pattern of dishonesty can bring into question his or her trustworthiness to the point where it may be relevant for a disciplinary action while in others it may not.

Lawyer Ads

Criminal Justice Blog selects its (least) favorite lawyer ads in a post called "5 Ridiculous Lawyer Ads" (here).

Federal Judge Strikes Down Waiting Period For Sending Out Targeted Mail to Arrestees

In a case that has not received a lot of attention, the U.S. District Court for the Western District of Texas ruled about a week ago that a Texas statute that prohibits lawyers from sending written solicitations to potential clients in criminal or traffic matters within 30 days of their arrest or summons violates the First Amendment. The case is McKinley v. Abbott.

As most readers of this blog probably remember, the US Supreme Court held in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995), that a ban on solicitations through targeted mail to potential personal injury or wrongful death clients within 30 days of their accidents was constitutional. In McKinley, though, the court distinguished Went For It based on the distinction between accident victims and criminal defendants. The court concluded that the challenged Texas statute “neither directly or materially advances a substantial state interest...”

This is not the first time a court reaches this conclusion. The court of appeals for the fourth circuit reached a similar result in Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997).

Thursday, April 8, 2010

April fools joke controversy update

Two posts below this one, you will find the first part of this story. If you haven't seen it, scroll down and read that one first then come back here. In any case, as you may recall, the story began with a lawyer/blogger posting a false story on his blog as a joke on April 1st which then fooled a bunch of people including The New York Times. Then a self proclaimed "ethics expert" launched an attack on his website against the lawyer/blogger accusing him of acting unethically. The debate continued for a few days until today when the "expert" finally gives up. To my surprise, and to his credit, he has now publicly admitted that he was wrong. See here and here.

As I said in my earlier post, I enjoyed the joke-story and thought it was a very effective and amusing prank. I did not see anything wrong with it ethically either. I was surprised at the attack by the "Ethics Alarms" website person because it was based on a basic misunderstanding of the content and doctrine of legal ethics - which you would expect someone who sells himself as an "expert" would know. His analysis was simply wrong from the beginning.

UPDATE 4/9/10: Here is another comment on the last post by Ethics Alarms. Simple Justice reponds to Ethics Alarms here.

Tuesday, April 6, 2010

ABA Conference on Professional Responsibility

The 36th National Conference on Professional Responsibility sponsored by the ABA Center for Professional Responsibility will be held in Seattle on June 2-5, 2010. For more information go here.

Here is a link to the conference schedule which includes sessions on the following topics:

Should Model Rule 1.10 be amended to remove imputation within a law firm in the context of concurrent representation?

Should Model Rule 5.6(a) be repealed, thereby permitting lawyers to participate in agreements restricting the right of a lawyer to practice?

Should Model Rule 5.4 be amended to permit lawyers to practice in law firm entities that have non-lawyer investors or owners?

Prosecutors and Their Disclosure Duties: A Regulatory Conundrum

The Year in Review in Conflicts

SEC Prosecutions of Lawyers: Trends and Implications

Trial Lawyers in Trouble

Social Websites and Legal Ethics

Preparing Lawyers (Effectively) to Prepare Witnesses (Ethically)

The Year in Review in Confidentiality and Attorney-Client Privilege

The Suicide Crisis

The Ethics of Investigations

Professionalism Revisited: Lessons From Social Science and Health Professions

Cross Border Practice at the Crossroads: Multijurisdictional Practice Revisited

Monday, April 5, 2010

"April Fool's" Joke or Ethical Misconduct?

This is the (long) story of how an "April Fool's" joke has turned into a debate about professional ethics. I will provide you with the links to the original story - which you should read to get the real feel of it - but to save you some time I will summarize it.

It all started early in the morning on April 1st when Eric Turkewitz, a very well known law blogger from New York, announced on his blog that he was shutting down his blog because he had been selected by the Obama administration to create and run a new White House Law Blog. His post was very convincing and included a photo of him meeting President Obama. I read his blog daily and saw the post early that morning. I totally bought it and felt instantly jealous! That original post is available here (although it may be updated now with the revelation that it was all a prank).

But that wasn't all. Two other popular bloggers were in on the joke and, right on cue, they soon posted their opinions on the "news." Simple Justice chimed in here. To add credibility to the "story," SJ added some concerns from the office of the President's press secretary. Meanwhile, the Volokh Conspiracy, another very popular blog, published very credible criticism (here). In response to these (fake) critiques, Turkewitz replied here.

The overall effect of the stories was a thing of beauty. It sounded totally credible and reached a lot of people out there.

Needless to say, it was all a joke; a made up story to see how many people would be fooled. And a lot of people were - including me.

Now, here is the thing: one of those fooled by the story was someone in the New York Times, who ran the story without checking its veracity first. Not only were they fooled, they were fools. (The Wall Street Journal, in contrast, did their job, contacted Turkewitz and were told the truth.) Eventually, Turkewitz revealed his joke (here). I was amused. The NYT, on the other hand, was not amused and cried foul.

And then the blog "Ethics Alarms" wrote: "Once again, Ethics Alarms will declare that it is irresponsible for anyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun”…yes, even on April 1. . . . No doubt about it, the Times was fooled, and should have checked the story. Then again, lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct."

Turkewitz and Simple Justice have responded (here and here). In his reply, Turkewitz asks "Who the heck is this blogger and why is he such a killjoy? And more importantly, does his argument have even a grain of merit?" and then proceeds to make an argument against Ethics Alarms' position analogizing the humor in the April Fools' joke to the use of humor in lawyer advertising. Simple Justice's reply takes a different perspective on the issue but reaches the same conclusion: that Ethics Alarms "is dead wrong" and that its "knee-jerk punditry. . .completely misapprehends the nature of the a lawyer's ethical duty."

In conclusion, Simple Justice argues that Rule 8.4 does not turn lawyers into truthy automatons: "We're still human. We are not, by dint of Rule 8.4, forbidden from telling our spouse that those pants don't make her butt look fat. And we can have some fun by playing April Fools jokes without risking disbarment. . . . We maintain the right to express ourselves, to use the rhetorical mechanisms available to the rest of society, to have opinions and to be silly and frivolous, as in having some fun. We retain the right to be human, even though we're lawyers."

UPDATE 4/6/10: Ethics Alarms replies to Turkewitz and Simple Justice (here). Make sure you read the comments (and may want to continue to check them in the near future for more.)

UPDATE 4/6/10 11pm: The blog "Defending People" replies to Ethics Alarms here.

So let's just ask the question: do you think it is professional misconduct for a lawyer to post a made up story on a blog as a joke, particularly when the New York Times runs it without checking its veracity first and is later publicly embarrased when the story turns out to be a prank?

DC opinion: sponsoring immigrant during representation is a conflict of interest

The District of Columbia Bar Legal Ethics Committee has issued an important opinion (available here) on the practice by immigration attorneys of executing affidavits of support for their clients. It concludes that lawyers representing immigrants cannot execute an Affidavit of Support (U.S. Citizenship and Immigration Services Form I-864) on the immigrant’s behalf as a joint–sponsor while continuing to represent the immigrant in the matter because doing so constitutes a conflict of interest.

The opinion states that "[t]ypically, a person who signs an Affidavit of Support agrees to support the immigrant at an annual income that is not less than 125% of the federal poverty level so that the immigrant will not become a public charge. The ensuing contractual obligations continue for years after the immigrant is admitted on the basis of the Affidavit of Support. The Affidavit of Support is a guarantee of financial assistance to a client. Such guarantees are generally prohibited by Rule 1.8(d). Because the obligations continue long after the completion of the immigration proceeding, the undertaking does not fit within the narrow safe harbor of Rule 1.8(d)(2), which allows, but does not require, financial support strictly necessary to sustain the client during a proceeding. An Affidavit of Support undertaking by a lawyer to a client is also fraught with peril under Rule 1.7(b)(4) (conflicts of interest). Thus, a lawyer who wishes to serve as a joint sponsor for an immigration client by executing an Affidavit of Support on the immigrant’s behalf must withdraw from the representation of that client before doing so."

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

Friday, April 2, 2010

Supreme Court rules that bad advice re risk of deportation in criminal case resulted in ineffective assistance of counsel

Two days ago, the Supreme Court announced its decision in Padilla v. Kentucky (available here) ruling that failure to provide accurate advice as to the risk of deportation while advising a defendant to plead guilty to a crime constituted ineffective assistance of counsel and, thus, a violation of the defendant's Constitutional rights.

The case involved a legal permanent resident from Honduras who pleaded guilty to drug distribution charges after his lawyer advised him not to worry about deportation because he had lived in the U.S. for 40 years. When he found out that the erroneous advise exposed him to near-certain deportation he claimed ineffective assistance of counsel.

The ruling obviously suggests that lawyers have a duty to alert clients about all possible consequences that flow from pleading guilty. Justice John Paul Stevens wrote for the 7-2 majority in which he states that the weight of prevailing professional norms supports a finding that lawyers must give accurate advice about deportation consequences of criminal proceedings as part of the Sixth Amendment right to counsel.

For an interesting take on the case go to Simple Justice, which criticizes the decision for imposing a new burden on criminal defense attorneys: "There was never any question that immigrants should be advised that a plea of guilty to an "aggravated felony" had immigration consequences. The question was who was responsible for doing so. . . . .What's unclear, however, is how the court could impose a burden on defense counsel to predict the future, and in a different legal specialty no less." Make sure you read the exchange in the "comments" section too.

For more on this story go to the The National Law Journal, The Blog of the Legal Times, Defending People, (here and here), the Legal Ethics Forum, and Koehler Law (which cites other blogs that I have not seen yet too: Mark Bennett, Gideon, Scott Greenfield, Jeff Gamso and Palm Beach Criminal Blog, (with a little primer on the basic issues criminal defense lawyers should look for).

Disciplinary costs are not dischargeable in bankruptcy

The Ninth Circuit has joined other federal courts holding that disciplinary costs imposed on attorneys by the California State Bar are intended as penalties and therefore are not dischargeable in bankruptcy. The case is called State Bar of California v. Findley (In re Findley), 593 F.3d 1048 (9th Cir. 2010). Go here for more on the story.

Using a company computer to send personal e-mail to a lawyer does not affect attorney/client privilege

The New Jersey Supreme Court has decided, in Stengart v. Loving Care Agency, Inc. (available here), that an employee "could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them." For this reason, the employer's counsel violated Rule 4.4(b) by reading the e-mails and failing to promptly notify the employee. The case was remanded to decide whether disqualification, screening, or imposition of other some other remedy should be imposed for the ethical violation.

Thanks to the Legal Profession blog for the information.

How not to practice law: pay your bar dues with a check from your client's account

I continue to be amazed by the items that make it to my ongoing "how not to practice law" posts. Here is the latest. Let's assume you have to pay your bar dues. Simple, right? Write check, sign check, mail check. Done. Unless you are dumb enough to do it using your client's money and let the bar know it in the process!

The Legal Profession blog is reporting today that 12 attorneys in Pennsylvania are under investigation because they paid their annual fees with checks drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel. In a footnote, the report calls the move the ethical equivalent of wearing a big "Please kick me" sign.

UPDATE 7/31/11:  Here is a report on another lawyer who paid his bar dues with money from a client's trust account...

Thanks to Legal Profession for the information.