Thursday, October 28, 2010

Pro bono reporting requirement results in more pro bono & donations

Illinois lawyers are not required to provide pro bono services, but if they do provide them, they must report it on their annual registration forms. This reporting requirement was adopted in 2007 and since then Illinois attorneys have logged more than 6.5 million service hours and contributed $47.2 million, according to a recent report by the Attorney Registration and Disciplinary Commission. The report states that the total of pro bono legal service hours provided improved by 2.1% from 2008 to 2009 and the total amount of financial contributions increased by 1% to a total of $14.9 million. The report is available here.

Wednesday, October 27, 2010

Arizona State Bar seeks tougher sanctions for attorney who claimed to be channeling client's deceased wife's thoughts

A few days ago, I reported (here) on the case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. The Arizona Disciplinary Commission imposed a one year suspension on the attorney but the State Bar has filed a notice of its intention to ask the Supreme Court to review the case and disbar Johnson. Go here for the full story.

Monday, October 25, 2010

ISBA urges laywers to donate time or money to celebrate National Pro Bono Week

The Illinois State Bar Association is reporting that to celebrate National Pro Bono Celebration Week, which kicks off today, ISBA President Mark Hassakis is encouraging ISBA members to perform some pro bono work or to donate money to entities that provide legal services to those in need. The ISBA Standing Committee on Delivery of Legal Services has a website where you can learn more.

Supreme Court asked to consider whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding

On October 29, the Supreme Court will consider whether to grant certiorari on a case called Turner v. Price, which asks whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.

Thanks to the SCOTUS blog, here are links to the Certiorari-Stage Documents:

Opinion below (Supreme Court of South Carolina)
Petition for certiorari
Amicus brief of the National Association of Criminal Defense Lawyers, et al.
Amicus brief for the Center for Family Policy and Practice, et al.
Amicus brief of the Constitution Project
Brief of South Carolina Department of Social Services in opposition (forthcoming)
Brief of Rebecca Price in opposition
Petitioner's reply

Sad news: Jim Neal has passed away

My former students will likely remember Jim Neal, usually one of their favorite participants in the TV show Truth on Trial, an episode of the PBS series Ethics in America. Sadly, I must report that he passed away a few days ago. Here is a short article on his long successful career. Last year, he was recognized by the ABA Journal as one of the most influential lawyers over 70. See "Lions of the Trial Bar: 7 over 70." He was 81. For more go here, here, and here.


Thanks to the Legal Ethics Forum for the news.

Links to new rules in Tennessee

Here is a link to more information on the newly adopted rules in Tennessee. Go here for a summary of the key changes. Go here for a copy of the new rules.

Sunday, October 24, 2010

Tennessee allows non-refundable fees

I have complained before that some jurisdictions have eliminated the advantage of allowing flat fees as an alternative to hourly fees (see here and here). Tennessee is not one of those jurisdictions.

The newly adopted Rules of Professional Conduct (R 1.5(f)) announced by the Tennessee Supreme Court allow for fees to be non-refundable as long as there is a written agreement signed by the client that explains the nature and the amount of the fee. The comment to the rule recognizes that two of the types of fees that can be non-refundable are classic retainers and flat fees. All fees, whether refundable or not, of course, must also meet the requirement of reasonableness.

Paragraph 4a of the comment to Rule 1.5 explains: "A nonrefundable fee is one that is paid in advance and earned by the lawyer when paid. Nonrefundable fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular nonrefundable fee is reasonable, or whether it is reasonable to charge a nonrefundable fee at all, a lawyer must consider the factors that are relevant to the circumstances. Recognized examples of appropriate nonrefundable fees include a nonrefundable retainer paid to compensate the lawyer for being available to represent the client in one or more matters or where the client agrees to pay to the lawyer at the outset of the representation a reasonable fixed fee for the representation. Such fees are earned fees so long as the lawyer remains available to provide the services called for by the retainer or for which the fixed fee was charged. RPC 1.5(f) requires a writing signed by the client to make certain that lawyers take special care to assure that clients understand the implications of agreeing to pay a nonrefundable fee."

For more on the newly adopted rules in Tennessee, go here. Go here for a copy of the new rules.

Tennessee does not adopt ABA Model Rules banning sexual relations with clients and allowing screening for lawyers who move to a new firm

About a month ago, the Tennessee Supreme Court announced its latest revisions to the Rules of Professional Conduct, which will take effect January 1, 2011. With these new rules, Tennessee joins the majority of jurisdictions in adopting most of the recent changes to the ABA Model Rules.

The rules, however, depart from the ABA Model Rules in at least two important ways. First, the Tennessee Supreme Court has rejected the adoption of the Model Rule that regulates sexual relations with clients. Instead, it has adopted three comments to Rule 1.7 on conflicts of interest that explain why sexual relations with clients is a bad idea, including the fact that the intimate relationship can exploit the client, impair the lawyer's judgment and endanger the attorney-client relationship. (You may remember that I recently noted that Texas is currently debating whether to ban sexual relations with clients -- more on that here.

Second, the new rules in Tennessee have retained its approach to conflicts of interest in cases where a new attorney joins a firm. Tennessee's rule does not recognize screening if the disqualified lawyer was substantially involved in the representation of the former client, the lawyer’s representation of the former client was in connection with an adjudicative proceeding that is directly adverse to the interests of a current client of the firm and the proceeding between the firm’s current client and the lawyer’s former client is still pending at the time the lawyer changes firms.

UPDATE (10-25-10) Here is a link to more information on the newly adopted rules in Tennessee. Go here for a summary of the key changes. Go here for a copy of the new rules.

Sanctions imposed on attorney who claimed to be channeling client's deceased wife's thoughts

A few weeks ago, I reported (here) on the case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. Among other thoughts, the lawyer claimed the deceased wife wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.

The State Bar brought disciplinary charges against the attorney seeking disbarment (mostly because of the lawyer's dishonesty during the disciplinary proceeding) but the hearing officer recommended a six month suspension. Now comes news that the Arizona Disciplinary Commission has imposed a one year suspension on the attorney. Go here for a copy of the opinion.

UPDATE 10/27/10: The State Bar has filed a notice of its intention to ask the Supreme Court to review the case and disbar Johnson, said Bar counsel Stephen Little. Go here for the full story.

Friday, October 22, 2010

The Defenders Episode 5

This week's episode of The Defenders again provided some material for discussion. (For a discussion of previous episodes go here and here.) If you want to watch the episode before reading my comments on it go here (select the video tab and click on the episode aired Oct 20).

The main story in this week's episode was definitely lame. But, as expected, there was an ethics related side story of interest. In fact there were two different ethical issues in this week's show: whether a lawyer can have sexual relations with a client and whether the attorney can disclose confidential information about a client.

As usual, the episode revolves around two stories - one case handled by Nick (Jim Belushi) and another case handled by Pete (the other guy whose name I don't know). In this episode, the ethical issues are both related to Pete's case. He is hired by an attractive young woman who is obviously interested in having more than a professional relationship with Pete. Nick reminds him he can't sleep with a client. Pete assures him he never has and that he won't in this case either. After Pete negotiates a plea bargain, he does spend the night with the client rationalizing that since the case is over he is no longer her lawyer. While at her place, he discovers incriminating evidence that suggests she was guilty of the crime and that she is planning a future crime.

Pete goes back to Nick, tells him what he discovered and that he thinks he has to report her to the authorities. Nick first asks him whether the plea bargain has been accepted by the court already. When Pete says no, Nick concludes several important things: the client is still a client, which means that Pete slept with a client, and the information he acquired is confidential.

At this point there is a memorable moment in TV history. Nick pulls out a book from his bookshelf and reads part of Rule 1.6 of the Rules of Professional Conduct out loud. Someone writing (or consulting) for this show actually knows what they are doing. Typically, other shows would have started to talk about "privilege" instead of confidentiality. I was very pleasantly surprised to see they got it right!

Watch the show to see how they handled it all in the end....

More TV reviews: new website on Law & Order SVU

Frequent readers of this blog know by now that I have been reviewing episodes of The Defenders -- I still owe you the comments about the last one, but they are coming, I promise -- so I thought I'd pass along the address of this new website which reviews Law & Order SVU every week. It is run by Allison Leotta, a federal sex-crimes prosecutor in Washington, D.C. The blog is called Prime Time Crime Review and you can access it by going here.

Thursday, October 21, 2010

N.Y. Courts to Require Attorneys to Verify Foreclosure Papers

Law.com is reporting that "[a]mid mounting national concern over the accuracy of court documents in foreclosure cases, New York state's court system has directed lenders' lawyers to file an affirmation that they have taken reasonable steps to verify the accuracy of papers they file to support residential foreclosures. The court system's affirmation form notes that foreclosure filings in various U.S. courts have been subject to such defects as failure to review documents and establish standings, bogus affidavits and the "robo-signing" of documents." Go here to read the full story.

Short documentary on Gentile v. State Bar of Nevada

In 1991, in Gentile v. State Bar of Nevada, the U.S. Supreme Court found that the trial publicity rule of the state of Nevada, which was based on an ABA Model Rule, was unconstitutional. In response to this case, the ABA amended its Model Rule on trial publicity, and several states followed the suggestions of the ABA, also amending their rules. As part of its “Voices of American Law” series, Duke University has produced a 12 minute documentary on this case. The video, as well as links to many relevant documents is available here.

Constitutional challenge to Indiana's Code of Judicial Conduct before the Supreme Court

The US Supreme Court Blog is reporting in its "petition of the day" page (where they highlight questions that have a good chance of getting granted) on a case called Bauer v. Shepard (Docket No. 10-425) which asks whether various canons of the Indiana Code of Judicial Conduct that restrict speech and/or activities of state judges and judicial candidates violate the Constitution. Go here for a copy of the lower court's opinion and here for a copy of the petition for certiorari.

Tuesday, October 19, 2010

California state bar to investigate 130 prosecutors following misconduct study

A couple of weeks ago, I reported (here) on a new study that showed that California courts discipline fewer than 1% of prosecutors they find committed misconduct. You can read the report here. Well, I am happy to report today that this may be about to change. The Legal Ethics Forum is reporting (here) that the California state bar, led by recently-appointed Chief Trial Counsel Jim Towery, is investigating 130 prosecutors who were identified in that study on instances of wrongful conviction. Go here for the full story.

Microsoft donates $3 million for pro bono work

Microsoft has donated $3 million to Kids in Need of Defense to aid in the organization’s effort to help children who come to the United States without a parent or legal guardian find pro bono lawyers to represent them in immigration court proceedings. Go here for more on the story.

Trivia I learned today

Here is a little bit of interesting trivia I learned today: William Marston (the “father” of the modern day polygraph), is credited as the creator of the systolic blood pressure test used in an attempt to detect deception, which became one component of the modern polygraph. Under the pseudonym Charles Moulton, he created “Wonder Woman” whose magic lasso requires those bound by it to tell the truth. For more information on comic books and law go to the Abnormal Use Law Blog. Most Fridays, they feature a classic comic book cover with a law related theme.

Monday, October 18, 2010

How not to practice law: be a pimp

The Legal Ethics Forum is reporting that a Minnesota lawyer has been disbarred after being charged with six felony counts of promoting prostitution. According to a news report, the disciplinary complaint alleges the 66-year-old lawyer set up appointments for prostitutes with men. It is not clear whether he was seeking prostitutes for his clients or whether he was seeking clients for his prostitutes. For more on the story (although there isn't much) go here.

Saturday, October 16, 2010

How not to practice law: charge $3,500 an hour AND be rude to the judge

Here is a double dose of how not to practice law. The Legal Profession Blog and National Law Journal are reporting that the Supreme Court of Kansas has disbarred a Kansas City attorney for charging $3,500 an hour to handle a case and for making offensive remarks to a judge and court staff.

I have to say... charging $3500 an hour is pretty unreasonable and to then go and insult the judge and the court's staff on top of it... yeah, that's pretty dumb; and dumb conduct is a recurring theme in the "how not practice law" series, ....isn't it?

Go here or here for the full story.

Thanks to Carly Toepke for the link.

How not to practice law: Plagiarize

In my class we discuss the case of In Re Lamberis in which a lawyer is disciplined for plagiarism in a (non law related) master's thesis. I use the case to illustrate the facts that (a) a lawyer can be disciplined for conduct outside the practice of law and (b) plagiarism is a very serious offense that the law school will not take lightly.

The Legal Profession blog is now reporting on a case in which the Iowa Supreme Court has imposed a public reprimand of an attorney who was found to have plagiarized in two briefs filed in a bankruptcy matter. Apparently, the bankruptcy judge had found that the briefs in question were of "unusually high quality" and directed the attorney to certify that he was the author. The judge's hunch was correct: the reason the brief was of such high quality was that the lawyer had lifted 17 pages virtually verbatim from a law review article . In response to the order, the attorney admitted that he had exceeded permissible use of a source. Go here for a copy of the decison.

This is the first case I have seen of discipline for plagiarism in a brief.

Thanks to the Legal Profession blog for the information.

Illinois Increases Ethics CLE Requirements

As of October 1, 2010, the Supreme Court of Illinois has amended its MCLE Rules to increase the number of required professional responsibility credits to a minimum of six hours. This amendment does not change the total number of CLE credit hours required to be reported for compliance, only the proportion of which must be devoted to areas of professional responsibility.

Thanks to the Ethical Quandary for the information.

How not to practice (criminal defense) law

Straight from the Legal Profession Blog:

"If you are a law professor looking for a teaching example of the wrong way to practice criminal law, take a look at a decision issued today by the Kansas Supreme Court. The court imposed a two-year suspension of a defense attorney who was handling his first felony sexual solicitation case. The attorney had prior misdemeanor experience.

The client was charged with engaging in an online chat with a police officer posing as a 14 year old girl. An arrangement was made to meet in a Hardee's parking lot. The client showed up and was arrested and retained the attorney.

The client wanted to put on a false defense that the online chat was a joke initiated by his brother. He and his parents pressured the brother to cooperate in the false claim. In fact, the brother had been in Idaho at the time as evidenced by an arrest for DUI three days after the client's arrest. The brother also was in the military and preparing to deploy overseas.
The attorney accompanied the brother to the police to make the false statement. He told the brother that he was not his attorney, but would sit in. The police told the attorney that he could only sit in as the brother's counsel. Then, the police left the room.

A tape recorder was left behind and the attorney fiddled with (rewound) the tape. He did not know that he was also being video recorded.The police returned and allowed the attorney to sit in on the brother's statement.

The police confronted the brother, who confessed and was charged. The charges were dropped after he agreed to cooperate against the attorney and his own brother.

The attorney falsely denied that he had fiddled with the tape recorder until he was confronted with the video. He was charged with felony obstruction of justice and pled guilty to a misdemeanor attempted obstruction of official duties. The misconduct in the bar discipline case involved a conflict of interest in providing advice to the brother and his false statement to the police, which had falsely accused the brother.

The Disciplinary Administrator made alternative recommendations for discipline: disbarment if the attorney was found to have knowingly participated in presenting the brother's false evidence; if not, indefinite suspension. The hearing panel had proposed a 30 day suspension."

Thanks to the Legal Profession blog for the information!

Wednesday, October 13, 2010

The Defenders Episode 4

Tonight's episode of The Defenders again provided some good material for discussion. (For a discussion of previous episodes go here.) If you want to watch the episode before reading my comments on it go here (select the video tab and click on the episode aired Oct 13).

The theme in tonight's episode was perjury. It is first mentioned when the lawyer goes to interview his client's alibi witness. The witness says the client was with him at the time of the crime. The lawyer then tells the witness they have to make sure the stories match or that they keep the stories straight or something like that. I don't want to worry about possible perjury, he says. Well.... first question: was the lawyer really interested in making sure the stories matched or was he suggesting to the witness to start lying now and not change the story later because as long as he (the lawyer) does not know the truth, then he does not know there is any perjury going on...?

That aside, the case then gets more complicated and in another scene, in the middle of an argument, the lawyer yells at his client "start telling me the truth now!" So the client does and now the lawyer really knows the truth.

Two interesting questions arise in this second scene. When the lawyer is yelling at his client to tell him the truth, he actually says something along the lines of "just tell me the truth, I know you did it all along..." OK, what does he really mean when he says he "knew" the client was guilty all along. If he really knew it, then wouldn't that mean he also knew the alibi testimony was false, in which case he had solicited perjured testimony in the previous scene? ...or at least was ready to use perjury in support of the alibi?

Or, was it that he didn't really mean that he "knew" but just that he suspected and is now seeking confirmation....? Which leads to the discussion of the old question on when do lawyers really know anything?

But once the client tells the truth, everything changes, of course. Now the lawyer knows for sure and he understands the consequences. Now it is clear; he knows the alibi is false so, in another scene, he argues with his partner about how he can't use the alibi witness any more.

But the problems don't end there. Things get more complicated and the lawyer eventually decides he actually has to bring the alibi witness to testify.... why? I am not going to tell you. Go watch the show ....

$95,000 in sanctions for filing a lawsuit knowing it was time-barred

The 2nd U.S. Circuit Court of Appeals has affirmed a nearly $95,000 sanction that Eastern District of New York Judge Denis R. Hurley imposed on a Long Island attorney and his client for knowingly filing a time-barred securities fraud lawsuit. Go here for the full story.

Comment on Connick v Thompson

Sherrilyn Ifill, Professor of Law, University of Maryland School of Law, has published an article called Why We Ignored the Supreme Court’s Review of Connick v. Thompson in the American Constitution Blog (available here). In it, she concludes that "How the Court resolves the Connick case will have a powerful effect on public confidence in the justice system - especially for African Americans. It is one thing to know that some prosecutors will violate their oath of office and violate the constitutional rights of criminal defendants. It's quite another for the highest court in the land to suggest that prosecutors can do so with impunity."

Thanks to the Legal Ethics Forum for the link.

Monday, October 11, 2010

Judge holds lawyer in contempt for refusing to recite the pledge of allegiance

A story on how a judge tried to force a lawyer to recite the pledge of allegiance in court and then sent him to jail when the lawyer refused has generated a lively debate. There should be no question that the judge's conduct was improper. The most interesting part of the story is in the comments that follow below it. Go here to read the story and the comments.

UPDATE: Law.com has the story here.

Sunday, October 10, 2010

"The Defenders"

I have been following the new "lawyer shows" on TV for the past three weeks (see here) and, at the risk of getting laughed at, I have say that the one I like the most is "The Defenders"! From the promos I thought this was going to be an over the top, dumb disguised detective show. I was right; but also wrong.

Most lawyer shows are not really about the law, but about the personal lives of the lawyers or they are what I call disguised detective shows - more about "who-done-it" than the legal issues related to the cases. "The Whole Truth" is a good example of this second category. The Defenders has a little of all that, and it is not perfect by any means, but each episode has given me serious material to discuss in class. Granted, the material usually relates to a short segment of the episode, but that is more than I can say about The Whole Truth which has contributed nothing to my class so far.

For example, two weeks ago episode 2 of the Defenders included a story line that combined issues of the duty to safeguard client property, client confidentiality, evidentiary privilege and duties to disclose information to the authorities, among others. In one scene a client brings the lawyer a large amount of money in cash which he says he took from his job's safe, used it to bet on a horse and won. The client's boss reported the stolen money and the cops are now looking for the person who took the money. The client is panicking and brings the money to the lawyer. Because the horse won the client actually has more money than what he started out with. ...So the lawyer then has to decide who has a right to the value added by the horse and whether to keep the money in his office, to give it back to the client or to give it to the authorities. He also has to decide whether to disclose the identity of the client when talking to the authorities. Sounds familiar? These are issues we discuss in class when studying the concepts of confidentiality, privilege and handling of evidence and the case People v Meredith. You'll have to go watch the show to see what happens. You can watch the full episode here. (Select the episode from 9-29-10).

Last week's episode, raised questions about the proper function of the judicial system, the dangers of overzealous prosecutors and overworked public defenders. (I think the criticism of the public defender system was not handled well, but that is a different matter). The episode also dealt with improper conduct by a lawyer and the issue of a lawyer having to testify in a trial while representing one of the parties.

It also had a scene where the lawyers discuss the notion of "truth" as it relates to a trial. This is something I spend a good deal of time talking about in class. Whether it is in the context of litigation, the adversary system, duties during discovery (the problem of "the properly asked question"), conducting client interviews or dealing with possible perjury, the concept of "the truth" is very important. Here is the video of that scene (after a short commercial). If you want to watch the full episode, it should start automatically a few seconds after the scene is over or you can go here. Here is the video:



"The Defenders" is on on Wednesday nights on CBS. Hopefully, it will last longer "than Outlaw"...

Comment on whether fees are unethical

Concerned with the possibility that clients who agree to a flat fee may end up paying more than what they would have paid if they had agreed to be billed by the hour, some jurisdictions have held that flat fees are not "earned" until the work is done and that any unearned portion must be returned to the client. This is consistent with the basic principle that a fee is unreasonable if it is not actually earned. But this view eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing. (For my previous comments on this go here and here.

I thought of this when I saw a comment by popular blogger Carolyn Elefant on fees which she called Billing Methodologies Don’t Act Unethically. Lawyers Do. In it, she concludes: "So is the flat fee to blame for the gigantic foreclosure mess, just as many have tried to blame the billable hour for unethical overcharges and the demise of biglaw? Of course not. True, the flat fee tempts lawyers to cut corners to keep costs down, just as the billable hour gives lawyers incentive to do unnecessary work to push bills up. But at the end of the day, the problem isn’t the chosen billing methodology, but rather, with the lawyers implementing it. Billing methodologies don’t behave unethically. Sadly, though, many lawyers do." Go here to read her full comment.

Article on the state of pro bono practice

Here is a link to a short article in the National Law Journal that discusses a recent study by the Pro Bono Institute surveying major law firms to assess their pro bono performance. The report for 2009 found that, despite the most difficult financial year in memory for major law firms, law firm pro bono and charitable giving actually increased, albeit at a far more modest pace than in previous years. Read the full article here.

Comment on Connick v Thompson's oral argument

Here is a link to a comment on the oral argument in Connick v Thompson published as part as the continuing coverage of the case by the Supreme Court of the US blog (SCOTUSblog).

Friday, October 8, 2010

Article on "unbundling" of legal services

Here is a link to a new article in the Illinois Bar Journal on "unbundling" of legal services.

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. For everything else, the client is either on his or her own or will rely on other lawyers.

Some say "unbundling" allows lawyers to provide access to legal representation to people who could not otherwise afford to hire the lawyer to represent them in all aspects of the case. Others respond, that that has always been the case.

The more difficult question we need to address is 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. Go here for my comment on this question.

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, which, in my opinion, is a very good thing.

On former client conflicts

Law.com is reporting (here) the story of Miami attorney Jonathan Aronson who was one of Royal Caribbean Cruises’ go-to defense lawyers on hundreds of personal injury and employee lawsuits for a decade. In 2009, however, the company established an in-house legal department and used Aronson for only one case. So he decided to "switch sides" and started suing the company as a plaintiff lawyer -- 65 times in 2009 to be exact. In response, Royal Caribbean is trying to get Aronson disqualified in all the cases arguing his representation of the plaintiffs against his former client is a breach of ethics and violation of attorney-client privilege, So far, these attempts have fallen flat, which is understandable if the Florida rule is like the ABA Model Rule on the subject. In fact, if the rules are the same, Royal Caribbean's argument should be rejected every time.

The third paragraph of the comment to the ABA rule states that "[m]atters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential FACTUAL information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter" and that "[i]n the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation."

It is only knowledge of specific facts gained in a prior representation that are relevant to the matter in question that ordinarily will preclude such a representation.

Md. Court Rules Defendants Have Right to Counsel at Bail Hearing

In a ruling that could have a major impact on the Maryland Public Defender’s Office, a state judge in Baltimore found that indigent criminal defendants have a right to counsel at their initial bail hearings. Story here.

Attorney sanctioned for comments and attitude during trial; but Ct does not declare a mistrial

Pharmalot has a story (here) about Gary Douglas, a plaintiff's attorney who represented a client who claimed Fosamax caused her to develop osteonecrosis. A few days ago, the judge in the case hit Douglas with a $2,500 sanction due to what has been described elsewhere as his manic and outrageous conduct during trial. According to the story, Douglas referred to another trial when he should not have done so, attacked the FDA during his summation over the way the agency is funded, characterized the FDA and the pharmaceutical industry for having an “incestuous relationship,” compared the FDA’s ability to monitor drug safety with the federal government’s response to Hurricane Katrina, improperly injected his own opinion concerning evidence into his summation, improperly referred to adverse event reports, accused Merck and its attorneys of hypocrisy, repeatedly disparaged defense witnesses and acted rudely, using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing and what the judge called "fooling around’ and making fun.” The judge's order is available here.

Although I have not looked at the record, it does sound like the totality of the circumstances justified imposing sanctions, but I have to say that I don't have that much of a problem with the part about the comments during the closing argument. After all, the FDA is underfunded and its relationship with the pharmaceutical companies is questionable. Was it relevant in the case? Was there evidence in the case to support the claim? I don't know... but assuming there was some relevance and some reference to it, I would have let this go as examples of acceptable rhetoric. The defendant would have its turn to counter the statements. They were not so damaging.... Go here for the full story.

But the story does not end there. Once the jury came back with an $8 million verdict for the plaintiff, the defendants (and their supporters) are complaining that the plaintiff's lawyer's antics should have resulted in a mistrial and that they should be granted a new trial. See here. The court, however, found no need for a new trial because the lawyer's conduct did not touch on the key evidence of the case. Instead, the judge reduced the judgment from the $8 million awarded by the jury to $1.5 million - which is half of what the plaintiff wanted.

Supporters of the defendant's position have argued (here) that the fact the plaintiff’s told the jury that his client needed $3 million as full compensation for her injuries and the jury awarded $8 million is "a big, flashing, incontrovertible sign that counsel’s advocacy improperly influenced the jury." "What else could possibly explain that verdict?"

Well, since I have not seen the record, I really don't know. But I can say this: no, the verdict, by itself, is not an incotrovertible sign of anything other than the fact that the jury thought $8 million would be a better result than the one the lawyer asked for. And why could that be the case? Maybe the jury thought the lawyer was incompetent and that the evidence showed the client should be better compensated; maybe the jury wanted to impose punitive damages to punish the defendant but couldn't so they added more zeros to the compensatories; maybe the jury wanted to "nullify"; maybe the jury was incompetent... who knows?

As even the defendant's supporters have argued, "attempts to ascertain the prejudicial effect of conduct are necessarily based on speculation about the effect of that conduct on a jury." Thus, at least from what I have seen so far, I think the judge was justified in denying the request for a new trial. Since I am as intolerant of improper conduct as the next guy, I am certainly willing to be convinced otherwise, but that's what I am saying now.... The judge should deal with the conduct by imposing sanctions or contempt, not by giving the defendant a new trial.

Law.com has more on the story here. AboutLawsuits has the story here.

Listen to oral argument for Connick v Thompson here

At the end of each week the Supreme Court releases audio recordings of the week’s oral arguments. Go here to listen to the oral argument on Connick v Thompson. It is available in several different formats including windows media and MP3.

Thursday, October 7, 2010

NBC cancels "Outlaw"

As expected, the TV show Outlaw has been cancelled. (See here and here). The Blog of the Legal Times is reporting that the remaining episodes of the show will be aired, but no new ones will be made unless there's a surprise uptick in viewership. That is not likely to happen! Now the question is which lawyer tv show lasted less: Outlaw or The Deep End? Does anyone know? Watch The Defenders or The Whole Truth instead.

Connick v Thompson: the "other" case the Supreme Court heard yesterday

Snyder v. Phelps was the center of attention yesterday at the Supreme Court, but it was not the only important case the Court heard. The other important case before the court was Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit had affirmed a $14 million award for the wrongful conviction and death sentence of the defendant in a murder case.

The basis of the claim is 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.

When originally reported in the Blog of the Legal Times, District Attorney Leon Cannizaro Jr. was said to have 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 the original claim was not based on vicarious liability at all but on the conduct of the district attorney's office itself. According to a story in Slate magazine, at one point, when questioned under oath the then-district attorney Harry Connick, Sr. could not articulate the Brady rule and after listening to two days of testimony about how Connick ran his DA's office, with the acting prosecutors blaming each other and fumbling over conflicting and inaccurate explanations of what Brady requires, a federal court jury in New Orleans awarded Thompson a $14 million verdict in 2007. The jury found that his 18 years behind bars (14 of which he spent in solitary confinement on death row) were caused by Connick's deliberate failure to train his prosecutors on their obligations to turn over exculpatory evidence. According to the Innocence Project, a national organization that represents incarcerated criminals claiming innocence, 36 men convicted in Orleans Parish during Connick's tenure as DA have made allegations of prosecutorial misconduct, and 19 have had their sentences overturned or reduced as a result.

The petitioners' response has been to argue that prosecutors should have absolute immunity from suit— because the plaintiff did not show there was a "pattern" of violations of the duty under Brady. They argued repeatedly that the case was the result of a single violation and in response to some questions during the oral argument appeared to argue that, even if there was a pattern of conduct, there could never be liability for the first offense.

The misunderstanding about whether the case is about vicarious or direct liability aside, the case will have important implications for the concept of prosecutorial immunity and the reach of the possible civil liability in tort and of the ethical responsibilities of the DA's office and its prosecutors.

The case also has another interesting connection to another issue 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. 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.

Interpreting the questioning by the justices during yesterday's oral argument, Law.com concludes that the "Supreme Court justices on Wednesday appeared ready to give the green light to efforts by a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit."

For a detailed account of the story behind the case go to Slate.

For more on the case go to the Legal Ethics Forum, USA Today, the Washington Times, the Boston Herald, the Law.com, Main Justice, and the the Washington Post. (Thanks to Scotus Blog for these links).

For the actual transcript of the oral argument go here.

For all the briefs, the opinion of the Court of Appeals and other legal documents go here.

UPDATE Oct 8: Go here to listen to the oral argument.

Yet another conviction reversal because of prosecutor's improper comments

About a month ago, I posted a comment about yet another case reversing a conviction due to the prosecutor's improper comments during the trial (see here). That one was the fourth such case I had heard about in a month. Now, just short of a month later, here is a fifth case. In this new case, called People v Vance, the prosecutor asked the jurors to imagine how the victim must have felt as he was dying and attempted to narrate the last moments of his life in detail. Defense counsel objected and the judge sustained the objection but the prosecutor continued with the same type of argument even after the objection was sustained several times. There is no way to know whether the prosecutor really knew that what she was doing was wrong, but what we do now is that she is not likely to be disciplined (see here). Now that the conviction has been reversed, hopefully she and other prosecutor do know that such tactics are not only wrong but also counterproductive. For a description of the case, including the actual comments by the prosecutor go to the Legal Ethics Forum here.

Wednesday, October 6, 2010

ABA responds to critics regarding access to ethics opinions

A few days ago, I posted a note about the debate on the availability (or lack of it) of ABA Ethics Opinions and the ABA's practice to charge for granting permission for others to copy or use the opinions in some cases. See here. In response, the ABA has published this announcement.

Interestingly, the announcement actually admits to the accuracy of the main criticism: the ABA does not allow others to post the opinions on their own sites claiming copyright protection. Instead, the ABA encourages others to link to the ABA’s website to access the opinions, but since the opinions are only available free of charge for six months, the links are of little use to those who are not members of the ABA after that period of time. Those who defend the ABA's position argue that enforcing copyright protections allows the ABA to generate some income to cover the costs of providing its services to the profession and that lawyers who want to enjoy the benefits of those services should contribute to pay for them.

Thanks to the Legal Ethics Forum for the update.

Tuesday, October 5, 2010

How not to practice law: tell your divorce client's wife you want to go out with her

Here is yet another story of an attorney having (or trying to have) sex with a client's spouse. In this case, the Indiana Supreme Court suspended an attorney for 90 days. The attorney sent the client's wife a series of e-mails in which the attorney discussed the attorney's romantic interest in the wife. The court affirmed findings that the attorney had breached his duty of confidentiality and engaged in a conflict of interest. The case is called In The Matter of Fillenwarth and you can read it here.

For the other stories involving attorneys and their client's spouses go here, here, here and here.

Study shows Calif. Courts Discipline Fewer Than 1% of Prosecutors They Find Committed Misconduct

A new study by Professor Kathleen Ridolfi of Santa Clara University School of Law, who is also the Executive Director of the Northern California Innocence Project and Maurice Possley, Visiting Research Fellow of the Northern California Innocence Project and a Pulitzer Prize-winning Criminal Justice Journalist, concludes that California courts discipline fewer than 1% of prosecutors they find committed misconduct. The ABA Journal has the story here. You can read the report here.

UPDATE 10/6/10: Law.com has the story here.

Texas lawyers debate whether to ban sex with clients

For the past seven years, a committee has been drafting new rules of conduct for attorneys in Texas on behalf of the Texas Supreme Court. Now, with a draft of those rules finally on the table, Dallasnews.com reports (here) that the biggest sticking point has been a rule that would ban sex with clients. Even though most states have adopted rules that prohibit a lawyer from engaging in a sexual relationship with a client, many lawyers are arguing against it, saying it could lead to frivolous malpractice charges. For more on this story go to The Wall Street Journal Law Blog here and Texas Lawyer here.

Sunday, October 3, 2010

ABA issues opinion on use of websites; debate ensues as to whether opinions should be provided free to all lawyers

The ABA has published a new Ethics Opinion (No. 10-457) on ethics issues related to lawyers use of websites. I have not had a chance to see the opinion so I will save my comments on it for a future date. However, the announcement generated a very spirited debate on a different issue.

After the opinion was circulated by email to all subscribers of the Ethics 20/20 Commission listserv with a warning from ABA staff counsel not to post it publicly due to copyright restrictions, a debate erupted on whether the ABA should make its Ethics Opinions available for free to all lawyers.

It all started when blogger Carolyn Elefant, frustrated because she could not post the opinion for the benefit of her readers, instead published an open letter to the ABA complaining about a general lack of access to ABA opinions. You can read her comments here. The response was fast and furious both in her website, in a barage of e-mail messages in the 20/20 commission listserve and elsewhere. For example, see here and here.

Elefant argues that "making access to ethics opinions contingent upon ABA membership is unacceptable. ABA opinions often serve as the basis for other bars’ actions (though as an aside, I note that with regard to the ABA Opinion on websites, it’s rather like the tail wagging the dog, with the ABA parroting dozens of other bar decisions as it issues guidance on a technology that lawyers have been using for 15 years). Lawyers should not be charged a toll for access."

On the other hand, members of the ABA Commission have argued that asserting copyright protections allows the ABA to raise funds. They also argue that there is nothing wrong with saying that attorneys should join the ABA to get ABA publications.

UPDATE 10-6-10: In response to the criticism regarding access to ethics opinions, the ABA has published this announcement.

Interestingly, the announcement actually admits to the accuracy of the main criticism: the ABA does not allow others to post the opinions on their own sites claiming copyright protection. Instead, the ABA encourages others to link to the ABA’s website to access the opinions, but since the opinions are only available free of charge for six months, the links are of little use to those who are not members of the ABA after that period of time. Those who defend the ABA's position argue that enforcing copyright protections allows the ABA to generate some income to cover the costs of providing its services to the profession and that lawyers who want to enjoy the benefits of those services should contribute to pay for them.

Australian PR blog comments on the issue of rude behavior

A few days ago, I commented on a story about whether rude behavior should be considered to be unethical conduct. See here and here. Today, the Australian Professional Responsibility blog has posted a comment on the issue here.

NLJ editorial on the need to expand legal services for the poor

A couple of days ago I wrote about the debate in Wisconsin over providing lawyers to the poor in civil cases. Here is a link to an editorial in the National Law Journal from earlier this summer that argues that "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."

Saturday, October 2, 2010

Should Lawyers Blog (Or Twitter) About Their Cases?

Attorney and popular blogger Eric Turkewitz has posted a short comment on the debate on whether practicing lawyers should write about their current cases, particularly while the cases are on-going. While some attorneys argue that it is important and informative for the public to get "inside" information about exactly what it is that lawyers do on a daily basis, others argue that it is improper or, at least, dangerous because there is always the risk of disclosing confidential information that could harm the client's interests. Read the comment here.

Friday, October 1, 2010

Is a lawyer representing himself or herself entitled to attorneys fees?

Is a lawyer who is successful in representing his or her own interests in litigation entitled to attorneys fees (when such fees are allowed or mandated, of course)? The Ethical Quandary blog has an update on the issue discussing or linking to cases that answer the question in Maryland, Washington, California and Oregon. Go here for all the information and links.

Legal Aid Group asks Wisconsin Supreme Court to provide free representation in civil cases

The Milwaukee Journal Sentinel is reporting (here) that a legal-aid group called Legal Action of Wisconsin plans to present a petition to the Wisconsin Supreme Court to adopt a rule that would provide free lawyers to some civil litigants arguing it is needed to protect poor litigants’ rights to basic human needs.

The proposed new rule would read as follows: "Where a civil litigant is indigent (defined as below 200% of the federal poverty guidelines), the court shall provide counsel at public expense where the assistance of counsel is needed to protect the litigant's rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement. In making the determination as to whether the assistance of counsel is needed, the court may consider the personal characteristics of the litigant, such as age, mental capacity, education, and knowledge of the law and of legal proceedings, and the complexity of the case."

Podcast on ethics and "e-discovery"

The Legal Talk Network has a 25 minute long podcast on ethical issues related to e-discovery here (also available here). The show features Judge Herbert B. Dixon of the Superior Court of the District of Columbia. Among other topics, Judge Dixon discusses the ethical rules which are most often violated in e-discovery and the unique issues in criminal law related to ethics and e-discovery.