Wednesday, July 28, 2010

On the difficulty of imposing consistent sanctions, again is reporting today that a nine-member District of Columbia Court of Appeals Board on Professional Responsibility has issued a split recommendation on sanctions for the misconduct of a former assistant U.S. Attorney for the District of Columbia. Four members recommended disbarment, three recommended a three-year suspension, and two recommended a one-year suspension. Because none of the recommendations was in the majority, the final decision will be up to the D.C. Court of Appeals. For a copy of the the board’s report and recommendation go here. For the full story from, go here.

Sanctions for conduct outside practice of law

What sanctions would you impose for the following conduct?

"Lawyer X left work, consumed alcohol, then fled from the police and ran eight red lights and stop signs while exceeding 100 mph. He then intentionally rammed another vehicle occupied by others in an attempt to cause great bodily injury, and fled the scene of the collision without stopping. Eventually, Lawyer X pled guilty to felony evading while driving recklessly, misdemeanor driving under the influence of alcohol/drugs, misdemeanor hit and run with property damage, and an amended felony charge of battery."

In the actual case, Lawyer X was suspended for one year and one day. What do you think: too much, too little, just right?

Florida case asks whether inadequate funding of public defender's office results in violation of consitituional rights; Michigan says no.

Here is a link to a comment posted in the Crim Law Prof Blog discussing State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010), a case to be heard by the Florida Supreme Court that asks whether the limitations imposed by inadequate public funding of a Public Defender's office results in a violation of the constitutional rights of the defendants the PDs represent.

In this case, the Public Defender's office of Florida's 11th district asked the court to be relieved of its obligation to be appointed to represent all future non-capital felony cases because the office's inadequate funding resulted in such an overload of cases for each individual lawyer that they felt they were not able to comply with legal and ethical duties to the clients. The lower court granted the request and the case is now under review.

Interestingly, the Missouri public defender's office has also decided not to take any new cases (here).

In a similar case, the Michigan Supreme Court recently reversed itself and threw out a lawsuit that was aimed at holding the state responsible for failure to provide adequate funding to hire lawyers for poor people accused of crimes. Go here for that story.

Thanks to the Legal Ethics Forum for the information.

Friday, July 9, 2010

Proposed new rules re online advertising criticized in Florida

The ABA is reporting that "[s]tringent new Florida Bar rules on attorney online advertising have ignited a firestorm, attracting criticism from a sweeping array of groups," including law firms, the American Civil Liberties Union and the FTC. Go here for the full story.

UPDATE: 7/11/10: Here is a story from on how Florida's largest law firms are starting to band together to protest the regulations, largely on First Amendment grounds.

Fools for clients....

Have you ever heard the expression "a lawyer who represents him or herself has a fool for a client"?

Here's a new Ninth Circuit case that puts a slightly different spin on the notion of fools for clients even though they were not lawyers. In US v. Johnson, the trial judge conducted a hearing and "practically begged [the defendants] to accept counsel but they refused." The court then concluded that "[t]he record clearly shows that the defendants are fools, but that is not the same as being incompetent."

Thanks to the Legal Ethics Forum for the information and the link to the opinion.

Sanctions for improper comments before the jury and conduct during trial

Last month a jury awarded $8 million in compensatory damages (see here) in a case against pharmaceutical company Merck in a trial related to injuries caused by its prescription drug Fosamax.

Today, Pharmalot is reporting that the plaintiff's attorney is facing sanctions for his behavior during the trial and certain comments during closing arguments. The court's order imposing the sanctions is availble here.

The order states that “[d]uring the trial of this hard fought case, Mr. Douglas repeatedly acted in an inappropriate manner before the jury and made several improper and/or factually incorrect arguments in summation after having been admonished.” Among other things, the order states that the attorney claimed the FDA has an “incestuous” relationship with drugmakers and offers cursory reviews and expedited approvals “in exchange” for funding, a reference to the user fees industry pays the agency.

Quite frankly, I don't have much of a problem with that statement.

But the story does not end there. There were other, more important, problems such as the fact that, according the the report, the attorney "misstated a report submitted as evidence by Merck; mentioned punitive damages when he wasn’t supposed to do so; improperly injected his own opinion concerning the evidence and improperly referred to adverse event reports." Some of these are clearly violations of duties in ABA Model Rule 3.4.

In addition, the order states that the attorney engaged in improper conduct for “repeatedly disparaging defense witnesses and generally acting rudely to defense counsel in a manner that cannot be fully captured in the record: using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing, and admittedly ‘fooling around’ and ‘making fun.’”

Friday, July 2, 2010

How not to practice law update

Here is an update on the how not to practice law list so far (each item is a link to its own post/story):

ask client to pay fees with drugs

insult the judge (preferably in writing)

write a bad brief

don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)

if you make a mistake, lie to cover it up

pay your bar dues with a check from your client's account

convince clients to give you title of their house so they avoid foreclosure, then get them evicted

let the client dictate (bad) strategy

ask client to pay fees with sex

park in the handicapped parking spot


get married when you are already married

show up to court drunk

have affair with married woman, then agree to represent her husband in divorce

when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

try to recover expenses from your client after you agreed not to do it

provide the wrong citation to key cases so the judge goes nuts trying to find them

try to blackmail your opponents to get what you want

lie to the judge

take more work than you can handle

lie to the disciplinary committee

forge the judge's signature

ask for stolen property as payment for your services

rob a bank

be rude to the judge's clerk

don't proofread anything before you file it in court

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

Here is a new addition to my on-going list of real stories that illustrate some relatively simple/straighforward things you should not do... or, as I like to call it, my how not to practice law examples.

The Legal Profession blog is reporting today that a laywer in California has been suspended for two years after he was convicted of one count of felony cocaine possession after it was shown that he accepted crack cocaine from a client as payment of a $175 bill. To be reinstated, the lawyer will also have to show he successfully completed a rehabilitation program and will have to pass the MPR Exam again.

Georgia does not invalidate certificate of merit requirement; Washington does

A few days ago, I argued against rules that require a plaintiff in a malpractice action to file a "certificate of merit" with the complaint. See here. The Legal Ethics Forum is now reporting that the the Supreme Court of Georgia has joined New Jersey in recognizing the validity of this type of requirement. The case is called Walker v Cromartie and it is available here. The court rules that it's not unconstitutional for the state to require professional malpractice plaintiffs (even indigent ones) to file expert declarations with the complaint.

Interestingly, this news item comes at the same time it is being reported that the Supreme Court of Washington has ruled a 90-day notice requirement in medical malpractice cases unconstitutional. The same court struck down the certificate of merit requirement last September. has the story. (Thanks to the TortProf Blog for the info and the link.)

More comments on the issue of privilege and the unlicensed attorney

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.