Wednesday, June 30, 2010

Can client claim privilege if client does not know his attorney is not licensed? -- UPDATED

A federal court magistrate in New York has decided that information shared with someone the client mistakenly thought was a licensed lawyer is not protected by the attorney/client privilege.

In this case, a trademark infringement claim by Gucci America Inc. against Guess Inc., Guess sought discovery of Gucci's communications with its in-house counsel Jonathan Moss, who was not licensed to practice law in any state at the time. He had been a member of the California bar until 1996 or 1997, but then became inactive. Gucci claimed the communications were protected by the attorney-client privilege but the magistrate disagreed.

In his order, the magistrate states that Gucci cannot "cloak itself under a veil of ignorance" to avoid handing over to a competitor communications with its former chief in-house counsel and held that Gucci could not justify its "mistaken belief" since the company "was plainly in a position to confirm the extent of [Mr. Moss'] qualifications as a legal professional and failed to do so."

Over at the Legal Ethics Forum Prof. Stephen Gillers argues that the decision is wrong because arguably "Gucci officers acted reasonably. The fact that they could easily have discovered [the lawyer's] inactive status (stressed in the opinion and by Guess?) doesn't mean they were unreasonable in accepting that he was a lawyer under the facts of the case. And a lawyer can be inactive one place and active elsewhere."

I agree with this, up to a point. It depends on what the client knew and when. If they knew the guy was not an attorney and confided in him anyway, I don't think the client has a right to then claim the privilege. But if they were, as Prof. Gillers points out, reasonable and really did not know of the attorney's inactive status, I would agree the client should be given the benefit of the privilege. Remember that the attorney client relationship can arise out of a misunderstanding - when the client believes there is a relationship because the attorney was not clear about whether he or she would accept the representation. (remember the Togstad case?)

Following that same line of reasoning, a client should be allowed the benefit of the relationship (the privilege) if the client reasonably believed the attorney was an attorney and that they (client and attorney) had a professional relationship.

Now that the real status of the lawyer is known, another question arises. What if the court takes the magistrate's recommendation and rules against Gucci; can Gucci sue the attorney for malpractice for having hurt Gucci's case because he was negligent in handling his licensing requirements. And, if so, can the attorney claim comparative negligence because Gucci failed to institute a policy to check on the licensing status of its in-house attorneys?

The magistrate's order is available here. For more on this story go to

UPDATE #1 (July, 2010): Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.

UPDATE #2 (Jan 2011): The magistrate's decision holding that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege was overturned.  See here.

Georgia Supreme Court reverses conviction and asks lower court to determine validity of state's public defenders system

In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel. More on this story on and the Legal Ethics Forum.

Suspension for insulting the judge

It is unfortunately no secret that not all judges are competent or fair. It is not uncommon to read opinions disciplining judges or allegations of corruption. Yet, what is the best way to deal with the situation? How should a lawyer appearing before a court address a problem with the judge? That is a very difficult question and not an easy decision to make. Sometimes an attorney must react even if it means risking being found in contempt. But there are obvious risks involved. Tread carefully.

Here is an example. The Legal Profession Blog is reporting today that the Illinois Review Board has recommended a six-month suspension for an attorney who made disparaging remarks to a judge. The attorney apparently was angry about the judge's decision to summarily place a fourteen year old child with someone he (the lawyer) claimed to be an addict. In a letter to the judge, the lawyer stated that "As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?"

Although portions of the letter are improper, I am not sure I would have imposed a six month suspension for it. Unfortunately, this was not an isolated incident. The lawyer reportedly also insulted administrative law judge in a different case.

The opinion is available here.

Monday, June 28, 2010

Improper comments?

The following two paragraphs are from actual statements made in Cook County Court in Illinois. Are they examples of acceptable, harmless rhetoric or should they be considered improper?

The word ‘strict’ in the phrase ‘strict liability’ does not mean anything it is just a name! It is created to intimidate people, it is self-made invalid authority, it is meant to implant in people undeserved and unjustified respect to the ordinance built on fear and misunderstanding but empty inside and not applicable in my case.


Robbery, it is a good business as it is something for nothing – a pure gain. Germans do not do it anymore after their discouraging experience 65 years ago (1945) as it is too dangerous now and people are watching them. Therefore they retreated to more subtle ways such as cheating, lying and acting dishonestly under the cover of law, usually as lawyers, exploiting us on this way.

Thanks to On the Record in Cook County for the quotes

Friday, June 25, 2010

NLJ editorial on the need to expand legal aid services

"With the legal needs of the poor rising in volume and intensity, more access to legal aid is a needed stop on the road to economic recovery." This is the start of an editorial published today in the National Law Journal online, available here.

Wednesday, June 23, 2010

More on the Supreme Court's decision in Holder v. HLP and possible constraints on attorney advice

Yesterday I said I would continue to update the list of links to comments on the recent decision by the Supreme Court in Holder by simply adding them to a previous post. But I want to point out a particularly interesting one here.

In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.

She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."

On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[r]estricting … attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.

I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.

It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.

Tuesday, June 22, 2010

Sentencing hearing video

Last May, I came across this video just as it became public over the internet. I mentioned it in class briefly because it raises many interesting questions but, unfortunately, I did not have enough time to discuss it in detail.

The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.

When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.

One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.

The issues I think the video allows me to explore are these:

The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)

This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.

I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?

Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")

Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?

Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.

If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.

Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):

PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....

More comments on yesterday's US Supreme Court opinion

Here are two more links to comments on yesterday's Supreme Court Opinion upholding the criminalization of "material support." I will keep adding links to this post if I see more from now on.

Go here for a comment by Jonathan Turley, in which he makes the following very interesting point: "Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts."

For more coverage of the case go to:

The New York Times

Room For Debate (NY Times)

The Wall Street Journal

Blog of the Legal Times

Wall Street Journal law blog

PBS segment on yesterday's Supreme Court's decision

For a transcript of this segment, go the PBS newshour website.

Monday, June 21, 2010

NY Times publishes debate on today's Supreme Court decision on criminalizing advocacy

The New York's "Room for Debate" section has just published three short Op-ed pieces debating today's Supreme Court decision on the constitutionality of a statute criminalizing advocacy for certain groups. The pieces are by David Cole (Georgetown University Law Center), Richard A. Epstein, (University of Chicago Law School) and Stephen I. Vladeck (American University Washington College of Law). Cole sets the stage by stating that "[f]or the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity." Go here for read the three articles.

Panel discusses inadequacy of legal services for the poor

The Blog of the Legal Times is reporting that last week a panel of legal experts at the American Constitution Society’s annual conference discussed the question of how to improve the indigent defense system. Stephen Bright, president and senior counsel at the Southern Center for Human Rights in Atlanta, Ga., outlined a series of problems facing the criminal justice system including a lack of a “true adversarial system” in many parts of the country, ineffective indigent defense programs, the use of the process to punish people unduly, and “no real way to put a check on the process.” In response, Laurence Tribe, the former Harvard law professor who in February was selected to lead the Justice Department’s newly formed Access to Justice initiative, argued that the answer could in part come from big law fimrs pitching in more frequently on a pro bono basis. Go here for more on the story. Given that we have always expected and encouraged "Big Law" to contribute pro bono services, I am not sure I would count on this as the solution to the problem.

Also, as an aside, it is comments like the ones by Tribe that remind me why it is upsetting to me to see that some states (like Illinois) are actually eliminating the rule that encourages pro bono services from their Rules of Professional Conduct.

Attorney suspended for disclosing confidential information in order to secure custody of child

Last week, the Legal Profession blog reported on an interesting case that shows that there are severe consequences to the disclosing confidential information, even if it is done with good intentions. The case also demonstrates once again, how becoming personally attached to a client can cloud an attorney's good professional judgment.

In this case, an attorney represented a client in a divorce. During the course of the representation, the attorney learned that the client was a drug user. Nevertheless, he began an intimate relationship with the client and began to act as a "de facto father" to the client's daughter.

Some years later, while still counsel of record for the client, the attorney filed a petition for custody of the daughter under the same court number as the divorce action. As part of this process, the attorney disclosed the confidential information about the client's drug use.

The attorney's intentions were good. He disclosed the information out of concern for the daughter's welfare. However, his conduct was a violation of his duty to the client.

Based on these facts, an Arizona hearing officer has recommended a six-month suspension and one year of probation.

NJ court holds plaintiff is required to file a "certificate of merit" in order to file a legal malpractice action.... Bad idea

Last week the New Jersey Appellate Division held that a plaintiff in a legal malpractice action is obligated to serve a timely affidavit of merit on attorneys as part of the process in a legal malpractice claim. New Jersey has a statute that requires filing such a certificate in cases against a number of professions but it defines "attorney" as a person licensed to practice law in the state of New Jersey. In this case, at least some of the defendants had provided legal services from offices outside the state and were not admitted in New Jersey. The case is called Lacrosse v. Klehr, Harrison, Harvey, Ranzburg, Ellers, LLP, and is is available here.

The court only imposed the requirement prospectively, however, because prior state case law was unsettled and federal decisions on the subject attempting to apply New Jersey law had taken arguably different approaches.

My problem with this is not the holding in this case in particular but with the notion that a plaintiff should be required to file a certicate to begin with. The court here was simply deciding whether the terms of a particular statute applied to the facts of the case. I just don't like the statute.

I think the requirement of a certifcate of merit is a bad idea for the same reason I think requiring certificates of merit in medical malpractice cases is a bad idea. In fact, I have stated before that if forced to choose between caps for damages and certificates of merit requirements I would have to support caps.

Both caps and certificates of merit requirements are popular "tort reform" measures, which, as all such measures, are looking to do one of two things: either to make it more difficult for victims to get compensation (by making it more difficult for them to get to court) or, if they can get compensation, to reduce the amount of money they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former.

It is, admittedly, a close call as to which would be worse for victims, but I am leaning towards saying that the certficate requirements are worse. With the cap, at least the victim does get some compensation and, as long as the cap is generous, many plaintiffs may not be affected. Of course, those who would be affected would be precisely those who need the compensation the most - those who suffer catastrophic injuries - but I as I said, I am being forced to choose between bad choices and with this one at least the victims get a chance to get something.

In contrast, the approaches to reform that seek to make it more difficult for victims to find representation, to find expert witnesses willing to certify their claims, and to make it more difficult to file claims to begin with, if successful, leave the victims with no recourse and no recovery at all.

Thanks to the Legal Profession Blog for the information. For more on the case go to

Supreme Court upholds limits on advocacy for certain groups

The US Supreme Court has announced today its decision in Holder v. Humanitarian Law Project, upholding the federal law that bars "material support" to groups designated as "foreign terrorist organizations," including advice or advocacy for nonviolent, peaceful, lawful ends.

I a very long opinion that I have not had a chance to read yet, the Court ruled 6-3 that the government may prohibit all forms of aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities. Justice Stephen Breyer wrote a dissenting opinion (joined by Justices Ginsburg and Sotomayor) in which he rejects the majority's conclusion "that the (U.S.) Constitution permits the government to prosecute the plaintiffs criminally" for providing instruction and advice about the terror groups' lawful political objectives. The full text of the opinion is available here.

Thanks to Renee Newman Knake of the Legal Ethics Forum and to for the news and links. For more on the opinion check out this article in the Wall Street Journal. See also the Blog of the Legal Times and the Wall Street Journal law blog.

Friday, June 18, 2010

How not to practice law: write a bad brief

Here is the link to a good short article on how to wrire a bad brief. It is called Writing Bad Briefs: How to Lose a Case in 100 Pages or More.

In includes great advice, such as:

-do not pick the more important issues and arrange them in order of strength; instead discuss as many issues as you can think of and arrange them alphabetically

-mistate the law or, even better, make it up

-citations are lame and a sign of weakness

-attack the court, opposing counsel, and your adversary with insults, condescending language, snide remarks, irony, and humor

-bury the bad stuff; concede nothing; fight to the end, especially on the little things that don’t matter

-be superficial

... and more.

Thursday, June 17, 2010

Information, links, briefs and more on Connick v. Thompson

Last March I reported 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 a wrongful conviction in a murder case. Here is the link to the Supreme Court WIKI page on the case which has links to pretty much anything you need to research the case: the briefs, the opinion of the lower courts, the cert petition, background information and more. This page gets updated with more links as the case progresses so save the cite and check it frequently if you are interested in this case.

Lawyer sleeps with client's wife.... no breach of fiduciary duty says the Court

Would it be a breach of fiduciary duty for a law firm partner to have a sexual relationship with his client's wife? Not according to the Supreme Court of Mississippi! The court's opinion is available here. More on the story here and here.

Thanks to John Steele of the Legal Ethics Forum for the links.

New proposals to facilitate limited representation in Illinois

There is a lot of talk about the concept of "unbundling" of legal services these days. Unbundling usually refers to an agreement in which the attorney agrees to help the client with a distinct and limited task. For example, the attorney would agree to review a document that the client will use to negotiate a deal by himself. The attorney's representation in such circumstances is "limited" to reviewing the document; not to negotiate for the client, not to represent the client in any proceeding, etc. Just reviewing the document. For everything else, the client is either on his or her own or will rely on other lawyers.

Much of the recent discussion about unbundling attempts to spin the notion of providing limited representation as an attempt by lawyers to provide some access to legal representation to people who could not otherwise afford to hire the lawyer to represent them in all aspects of the case.

The problem I am having with all this is that we have always known the vast majority of the legal needs of the poor are not being met AND we have always had the ability to limit the scope of representation. There is nothing new about this. (See Rule 1.2 and its comment.)

So why all of a sudden are lawyers so worried about the needs of the poor? The "negative" answer is, of course, that it is because the economy is bad and so many lawyers are desperately seeking clients; which means lawyers are more willing to do little things for people they would normally not want to represent because lawyers need the money.

This was the underlying debate in the discussion on "ghostwritting" I posted recently (here and here). The underlying question was whether an attorney who writes a court document for a pro-se litigant should be required to disclose (in the document) that the lawyer helped the client prepare it. A recent ethics opinion in the state of New York concluded that attorneys could remain incognito. In response it has been said that anonymity can result in abuses and in lawyers taking advantage of the clients they are supposedly trying to help by unbundling the services. As one blogger put it "the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don't know better."

This debate is now before the Supreme Court of Illinois. It is considering some proposals to amend certain rules to regulate limited representation in the state. The proposals are available here.

Interestingly, the proposal regarding "ghostwriting" is the opposite of the view adopted in New York. The proposal reads as follows:

An attorney may assist a self-represented person in preparing a pleading, motion, or other paper. The self-represented person shall sign the pleading, motion, or other paper, and on the signature page the attorney shall insert the notation "Prepared with assistance of counsel under Supreme Court Rule 137" followed by the attorney’s name, firm, or organization name (if any), business address, and phone number. This notation does not constitute either a general or limited appearance by the attorney. An attorney providing assistance may rely on the self-represented person’s representation of facts without further investigation by the attorney, unless the attorney knows that such representations are false. ...

Prosecutors seek to vacate sentence admitting to "inadvertent nondisclosure"

In yet another example of either misconduct or negligence by prosecutors, the Blog of the Legal Times is reporting that federal prosecutors want a prison sentence vacated and the indictment dismissed by the U.S. Court of Appeals for the D.C. Circuit because of what they call an “inadvertent nondisclosure” of potentially impeaching material about the defendant's statement to police. Go here for a copy of the prosecution's three-page motion. For many more stories regarding prosecutorial misconduct over the last year and a half go here.

Can flat fees be non-refundable?... again...

As you probably know, the basic standard to determine if a fee is ethical is that it must be "reasonable" and typically the rules of professional conduct (or its comments) will provide a list of factors to consider when trying to determine if a fee is, in fact, unreasonable. Interestingly, one factor usually not mentioned is whether the fee is "non-refundable."

Can an attorney charge a non-refundable fee or would that be, by definition, unreasonable. Given the state of things, the accurate but not very helpful answer has to be: that a non-refundable fee is OK as long as it is not unreasonable. Not very helpful, is it?

Not surprisingly, thus, there has been a lot of debate as to whether attorneys can charge non-refundable fees. I recently posted a comment on this here.

Enter the Missouri Advisory Committee on Professional Responsibility, which just about a month ago issued a new opinion on the matter in which it concludes that non-refundable fees are to be considered unethical in Missouri. (Go to the Ethical Quandary blog for more).

Saying that non refundable fees are just not allowed sounds simple enough, but, in reaching the conclusion the Committee makes a number of mistakes and I am not sure that the end result is justified.

The Committee starts by stating that there are "two types of cases [that] provide good examples of situations in which supposedly nonrefundable fees are involved." The first example is a case “where the client pays a flat fee or makes an advance deposit on fees against which the attorney will bill on an hourly basis."

Here is the first problem. An "advance deposit" such as the one described is what other jurisdictions typically call a "security retainer" which can never be non-refundable. There has never been any debate about this.

If we take this "example" out of the equation, what is left is what the Committee calls "a flat fee."

From here, the Committee points out that a "flat fee" is not earned automatically when agreed to. The fee is only earned when it is, well, earned, and it is not until then that there is an obligation to pay it. There is a certain obvious logic to this reasoning but it still does not explain when the flat fee is actually earned other than to state that the fee is earned when the representation is completed.

If the representation ends before the representation is completed, however, the Committee states that the attorney must analyze the factors set out in the rule regarding fees "to determine the extent to which the attorney must refund all or a portion of the fee."

In other words, the attorney must determine if not refunding the fee would result in an unreasonable fee or as the Committee explicitly states it: "because an attorney may not charge or collect an unreasonable fee, the attorney must determine that the fee was reasonable."

And so we are back where we started... is a non-refundable fee unreasonable? Only if we determine that it is.

In the end, I am afraid this analysis adds nothing and clarifies little. The Committee essentially concludes - without stating it - that a flat fee has to be analyzed just like the "advance payment" described in the beginning of the opinion (aka a "security retainer") which has never been allowed to be non-refundable. After reading the opinion, all we know is that you can't call the fee non-refundable, that you can call it "flat," that it can't be unreasonable and that in some cases (but not others) not refunding part (or all) of the fee would be unreasonable. Nothing new there.

What would be new, I think, is to consider whether allowing non-refundable flat fees in some cases might actually be a good alternative to other forms of fees. I discussed this issue here.

You can find the full text of the opinion here.

One final note of interest: the Committee explicitly discourages attorneys from using the term "retainer" from now on because "the term has taken on many meanings which are inconsistent with one another and which are confusing to clients." And, in support of this conclusion, the Committee cites Dowling v. Chicago Options Associates, Inc., 875 N.E.2d 1012, 1018 (IL 2007), an Illinois case, that I have long argued makes little sense... but that is another story....

For more on the Missouri Advisory Committee opinion go to the Ethical Quandary blog.

Three new TV shows (with trailers)

With the recent demise of the original "Law & Order" and "Raising the Bar," the major networks are apparently feeling the need to introduce new law related shows. Here are the trailers. One is called "Outlaw" about a Supreme Court Justice who decides to retire and go into private practice. Another is called "The Defenders" and is about a pair of criminal defense lawyers. The third one is "Harry's Law" about people brought together by fate to form a law firm.

I enjoy watching law related shows and movies and reading "legal thrillers" as much as anyone, but I often wish they were much better than what they usually are. I will give all of these a chance but from what I can see in these trailers at least two of them appear to be based on tired old stereotypes: either every client is innocent (Outlaw) or criminal defense lawyers are sleazy (The Defenders), aside from the fact that apparently all lawyers are young, beautiful, fit, sexy and have lots of sex in the office and law libraries. Outlaw also seems to have the stereotypical "team" of characters (common to so many "heist" type movies): the outlaw, the rebel, the intellectual, the smartass, the computer genius, etc. If they add a demolitions expert maybe they could compete with the A-team. The Defenders looks like it might be more of a comedy "detective" show; more about trying to figure out "who did it" than about legal issues.

Harry's Law seems to escape the mold - or at least part of it. This one is produced by David E. Kelley, producer of three relatively successful law related shows. The trailer has some pretty funny lines and Kathy Bates is always entertaining. But, given that I didn't like any of the three previous David E. Kelley shows, I will have to wait and see...

But I am getting way ahead of myself. Let's give them all a chance.... Maybe they will last longer than the last few attempts ... Does anybody remember "Shark" or "Eli Stone"?

Thursday, June 3, 2010

No incentive for lawyers to act properly

In one of today's sessions at the annual conference of the ABA Center for Professional Responsibility we discussed cases of misconduct in the process of litigation - both during the pre-trial process and the trial itself. After illustrating many instances of misconduct with cases from the last 12 months, we discussed the possible reasons for the many reported instances of misconduct and there seemed to be some consensus that courts are not doing enough to discourage improper conduct.

Here is a recent example. Pharmalot is reporting that a federal court judge has imposed sanctions on Novartis for misconduct in the process of discovery. However, when I read the judge's opinion (here) what I see is a little different.

In this case, Novartis asserted it did not have any direct to consumer ads to produce during discovery because it never ran any direct to consumer ads. After plaintiffs lawyers found examples of ads in a magazine distributed to cancer patients, the company claimed they had not been produced because those ads were what it called "direct-to-patient ads" (as opposed to direct to consumer ads; see the difference?).

The plaintiffs asked the court to impose sanctions and to mandate the payment of attorney's fees. The Court granted the request for attorney's fees, but denied the imposition of sanctions.

The Court found that the distinction between "direct to consumer" and "direct to patient" ads was misleading concluding that "[t]here is no logical separation between consumers and patients in this context. The target market for these limited-use drugs is cancer patients and cancer patients are the consumers of Novartis products.”

The judge, however, denied the requested sanctions finding that there was no showing that the defendant "deliberately withheld" the documents in question. Apparently, the defendant had, in fact, produced one copy of a magazine which contained an ad as part of its first production of documents.

It seems to me the court did not really think this one through. The facts of the case show that the defendant drugmaker affirmatively denied the existence of relevant ads (in deposition testimony) while at the same time apparently produced one example of such an ad in a production of documents. When exposed with more ads found independently by plaintiffs' counsel, the defendant changed its legal claim to attempt to justify its initial denial of evidence it is now clear it knew existed.

These facts suggest to me there is more to the story and the court is not doing anything to find out. I think the court should have tried to determine if, in fact, the defendant had acted with intent to withhold the information in order to decide whether to impose sanctions. I think the facts suggest at least a possibility that it did. One question I have is how come the first magazine ad went undiscovered if it was in fact provided in response to a production of documents request. Was it perhaps because the production was an attempt to bury it within tons of other documents? If I had been the judge, I would have liked to find out about that before denying the requested sanctions.

The court did not call for an evidentiary hearing and simply said there is no evidence to suggest misconduct. In doing so, it gave the defendant (and its lawyers) a pass.

This is all reminiscent of Washington St. Phys. Ins. Exchange & Ass’n v. Fisons Corp, 858 P.2d 1054 (Wash. 1993), in which the court imposed financial sanctions for somewhat similar conduct.

In neither case, though, were the attorneys disciplined.

Essay on the prosecutor who "threw" the case

My students will remember the story of the prosecutor who decided to surrepticiously help the defendant's lawyer win a case because the prosecutor had doubts as to his own case. Here is a link to an essay on the case by Professor David Luban of Georgetown University.

Thanks to Legal Ethics Forum for the link.

Illinois Supreme Court finally decides case of lawyer who tampered transcripts to get a job

Back in January I posted my criticism of the Illinois Review Board's decision to recommend only an 18 month suspension in a much-publicized case involving a lawyer who lied on his law school application, plagiarized a paper while in law school and altered his transcripts to give himself better grades in 20 courses in order to get a job in a big firm. For my discussion on the case go here, here and here.

Today, I am pleased to report that the Illinois Supreme Court has shown some common sense and ignored the recommendation. It has decided to impose a three year suspension. I, of course, would have voted to disbar the lawyer, but that is another story. For more on the story go here and here.

ABA Conference of the Center for Professional Responsibility

I am currently in Seattle participating in the annual conference of the ABA Center for Professional Responsibility. This morning I attended a very good panel on whether the rules should be amended to allow screening for concurrent conflicts of interest situations. Eventually, I will post some of my thoughts on this, but if you want up to the minute news you can go to the Legal Ethics Forum where Rob Vischer is blogging "live" (or close to it). Here is the link to his first report; here is the link to the second one. After that you should go to the main link to the Forum and scroll down.

How not to practice law: don't ever read anything before using it

I have been away from the blog for some time while grading exams and doing some traveling but I will get back to it regularly soon. Meanwhile, here is a new entry to in our on-going list of things that help us describe how NOT to practice law, In this case, though, the end result fortunately for the lawyers involved is not discipline but embarrasement.

This is the tale of a law firm that scanned a certain deed to a piece of property to include the information in a foreclosure notice for publication in a local newspaper. Apparently, no one - either at the firm or the newspaper - read the notice before it was published. It read as follows: “The said land shall not be sold, leased or rented to any person other than of the Caucasian race.”

After a complaint was filed with the Massachusetts Commission Against Discrimination, the statement was removed from subsequent editions of the newspaper and both the law firm and the newspaper issued appologies.