Friday, December 30, 2011

How not to (start the) practice (of) law: cheat on the bar exam

The title says it all.  If you want to be admitted to the practice of law, it is really not a good idea to try to cheat during the bar exam. ..just sayin'... 

The Legal Profession blog is reporting today on a case in which the State Board of Law Examiners found that the petitioner was trying to cheat during the bar exam.  The Appellate Division of New York's Supreme Court
 affirmed the decision nullifying the results of the exam.  Go here for a copy of the court's order.

Wednesday, December 28, 2011

More on the controversy over Stephen Glass' request for admission to the bar - UPDATED (Dec. 27)

A few days ago I wrote about the controversy over the request for admission to the bar by Stephen Glass, a former journalist who was exposed for having falsified many of the stories he wrote for important national magazines over the years - including some he wrote while attending law school.  See my original comment on the case here.    Reuters has a new story on the case here.

UPDATE 12-10-11: Stephen Diamond has posted a comment called "Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment," here.

UPDATE #2:  12/27/11:  (by the Legal Ethics Forum):   An op-ed published by the New York Times (here) argues in favor of admission to the bar.  The Washington Post has more on the story here.  Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case.  The article was later turned into a film of the same name.

Top stories of the year

As usual, around this time of the year we start seeing "top ten lists" for everything.  Go here for the Top Legal Ethics Stories of the Year list as compiled by the Legal Ethics Forum.

How not to practice law: host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user

I am constantly amazed at how people post stuff on the internet forgetting that others have access to what they post...  I like to tell my students jokingly (although it is not entirely a joke) that "facebook makes you dumb."  Here is another example:  In a recent case the South Carolina Supreme Court disbarred an attorney who did not reply to a number of alleged ethics violations, among them a charge that he maintained a webpage with the name of his law firm on MySpace.com that contained profanity and nudity along statements that suggested he had been using drugs during the week prior to posting the comment.

Listen people:  if you post something on the internet, others will read it.  It can and will be used against you. 

Friday, December 16, 2011

The New Jersey approach to sanctions

As Mike Frisch of the Legal Profession Blog recently stated, "there was a time when New Jersey had the reputation for being tough on attorney misconduct. That time has obviously long since passed."  His comment was prompted by a couple of new case that display what he called "the forgiving nature of attorney discipline in New Jersey."

In the first case, an attorney had been suspended for three months but failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension but the Disciplinary Review Board concluded that no further suspension was appropriate.

In the second case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation. As a result, while claiming that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated," the imposed sanction was merely a reprimand.

Permanent ban from the SEC as a sanction

Breaking from tradition, the Securities and Exchange Commission sought sanctions in a recent case for ethics violations that were not tethered to violations of securities law.  In fact, the Commission imposed a lifetime ban on a commercial litigator whom the agency accused of violating attorney ethics rules.  Today, the BLT is reporting that the Court of Appeals for the DC Circuit unanimously upheld the commission's sanction.  Go here for more on the story.  Go here for the decision of the court.

Proper sanctions? You be the judge

Here is a story from the Pennsylvania Disciplinary Board (via the Legal Profession blog).

An attorney was retained to pursue claims for injuries sustained by a passenger in a plane that collided with a truck on the runway. In the suit, he asserted that the client's injuries were solely caused by the accident. The client so testified at her deposition. The client also testified that she had had no contact with the attorney prior to the plane accident.

However, this was false.  The client had been in a car accident two months before and had retained the attorney to pursue the claim.

The attorney failed to correct her false deposition testimony, contending that he did not "contemporaneously realize" that the testimony was false.

I am sorry, what?  So, at the time of the deposition the attorney had forgotten that the client was his client in another on going case?  Or was it that the attorney did not realize the client lied when she said she had not contacted the attorney?  Since he must have known she had contacted him, I am not sure it is difficult to see the statement was incorrect.

What sanctions would you impose? The Board imposed a public censure.  The opinion is available here.

Wednesday, December 14, 2011

Malpractice on 34th Street

Abnormal Use has an interesting take on the movie Miracle on 34th Street, a Christmas classic.  As you may recall, the movie's climax is a trial scene.  Abnormal Use reviews the film and discusses how inaccurate the courtroom scenes are here.

Conviction reversed because of improper argument by prosecutor

A conviction of a criminal defendant for the murder of his wife was reversed by the Mississippi Supreme Court because, as part of the closing argument, the prosecutor repeatedly asked the jurors how they would feel with a loaded shotgun pointed at their face.

Thanks to the Legal Profession blog for the link.

Monday, December 12, 2011

Spectacular incompetence

I once used the title "incomparable incompetence" to describe the conduct of attorneys and the judge in a particular case (see here).  Then a similar case came along and I again questioned the competence of those involved (here).  Now a judge has beaten me to the punch, calling the conduct of a criminal defense lawyer and the prosecutor in the case "spectacularly incompetent" according to the Houston Chronicle (here).

In this new case, the defendant was convicted and sentenced to life in prison for armed robbery.  He insisted he was innocent, but could not remember exactly where he was on the day of the robbery.  The fact is he had a pretty good alibi, he just did not remember it.  He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.

Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges.  In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."

The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."

Interestingly, it seems the attorney's conduct did not result in injuries to the client, though.  True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges.  In fact, he is still in custody for this reason.

In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.

In terms of discipline, should we impose sanctions for this conduct?

Saturday, December 10, 2011

Follow up on the story about the prosecutors in the Ted Stevens case

About two weeks ago I commented on the report by the special prosecutor looking into the misconduct by the prosecutors in the Ted Stevens case.  See here.  Just a few hours ago, I commented on an op-ed piece on the need for more accountability for prosecutorial misconduct (here).  Here is a story that combines both of those themes.

Today there is a new related story about the Ted Stevens case.  But before I tell you that story, I have to give you a little background.  Back in February 2009, U.S. District Judge Emmet Sullivan declared several prosecutors in contempt for violating a court order to turn over documents to Stevens’ defense team. However, the judge did not impose sanctions, saying he would address sanctions at a later date. The prosecutors disclosed the information hours after they were held in contempt, but the judge did not lift the contempt finding until October 2010, more than a year later, when he declined to impose sanctions against the prosecutors.

The prosecutors, challenged the contempt order arguing that it was a criminal contempt order, which they apparently argued marred their professional careers and could impede their ability to practice in federal trial courts around the country.  They wanted the contempt order reversed because, according to their argument, it was issued without procedural protections required by the rules of criminal procedure.  Such a finding would have eliminated the "conviction" but would not have necessarily negated the nature of the conduct that resulted in the imposition of contempt.   

The challenge to the contempt order has now been decided by the U.S. Court of Appeals for the D.C. Circuit which held that the contempt order was civil, not criminal.  In doing so, thus, the court found the lower court did not err in holding the prosecutors in contempt, but at the same time apparently cleared them of the possible interpretation that they engaged in misconduct. The decision is available here.

In the end, however, this whole thing is becoming a comedy of errors - and when I say "comedy" I mean exactly the opposite.  First of all, there is the conduct of at least some of the prosecutors to begin with.  Second, there's the judge's handling of the order.  He should have imposed sanctions immediately.  There was no reason to wait more than a year to decide whether to impose sanctions or to wait more than a year to not impose sanctions.

Third, there is the finding of the court now saying the order was really civil in nature.  What's the problem with that?  It has the effect of saying that the prosecutors' conduct was not worthy of criminal contempt, letting them off the hook.

In the end, by having the court reject their argument, the prosecutors got a better result than the one they apparently had asked for.  The fact is that, at least so far, nothing has marred the careers of any of the prosecutors involved in the case and there is really no reason to expect that anything will. For more on that topic go here.

For more on this story go to the Blog of the Legal Times and the Wall Street Journal Law Blog.

Friday, December 9, 2011

Op-ed asks for prosecutorial accountability

Last month I posted a note (here) about a new short article in the Yale Law Journal Online on prosecutorial accountability. The article is called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct and it is available here.

Today, one of the authors of the article published an Op-ed piece in the National Law Journal calling for more accountability for prosecutors.  It is available here.  It states that "research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs."

I have been saying this for a long time, of course, so I am glad the problem is finally getting more attention.  Long time readers of this blog might remember that I called 2009 the year of prosecutorial misconduct because there were so many high profile cases reported.  Also, if you look at the number of posts by topic (on the right side panel) of this blog you will see that the "prosecutors" category has one of the highest totals.  Obviously, not all of the cases reported there involve intentional misconduct, but many do and more often than not my comments end with me complaining that courts and disciplinary agencies do not do enough to discourage misconduct among prosecutors.  For the most recent example, go here.

Wednesday, December 7, 2011

Illinois Disciplinary board granted authority to investigate, prosecute unauthorized practice of law

Illinois Lawyer Now is reporting that, earlier this week, the Illinois Supreme Court granted the Attorney Registration and Disciplinary Commission (ARDC) the authority to investigate and prosecute the unauthorized practice of law.

I have to say I found this surprising in the sense that I thought the ARDC already had that authority.  The ARDC is the disciplinary agency in the state and given that unauthorized practice of law is an ethical violation, you would think that it has the authority to deal with such cases.  Well, apparently, it didn't, but now it does.

But maybe I should not be surprised.  A couple of years ago, I posted a comment about a case that interpreted the notion of illegal practice of law in Illinois which I found odd.  I promised myself I would do some research on the question, but never got around to it.  Maybe now I will....

That case from two years ago was People v Harris, in which the Court of Appeals affirmed a conviction of a law school graduate who was not admitted to practice in Illinois for "false personation of an attorney."

Here is what I wrote back then:

The applicable statute in the case  reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”

The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."

This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.

Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?

After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.

The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.

Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.

The opinion is available here.

ABA Commission on Ethics 20/20 Releases Rule 5.4 Draft

The ABA Commission on Ethics 20/20 has released a discussion draft of a possible proposal to amend Model Rule 5.4, which, if adopted, would allow for very limited forms of nonlawyer ownership in law firms. The Commission is seeking feedback in order to determine whether it should make such a proposal.   The proposal can be found here.

The Commission encourages responses by late January 2011, so that they can be discussed at the Commission's February 2-3, 2012 meeting, and further asks that those requiring additional time submit comments by February 29, 2012. Comments should be submitted to Senior Research Paralegal, Natalia Vera, natalia.vera@americanbar.org.

For more on the story go to the Legal Ethics Forum and the Wall Street Journal Law Blog.

Some time ago, I posted a note about a bill in North Carolina on the same issue with a link to a comment that concluded this is a lousy idea (here).

Monday, December 5, 2011

Not one of the top blogs

Once again, my blogs did NOT make it into the list of the "best" law blogs.  What's the matter with you people?!  Don't you like me?   C'mon...  I am getting discouraged here!!!   I guess I need to get organized and start a campaign much sooner next year...  Is it that my blogs don't have "catchy" titles?   Then help me come up with a better one... 

All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam....  Decide for yourself after you read his post here.

Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.

Thursday, December 1, 2011

Proper role of the judge or abuse of discretion?

I have commented in the past on the controversy related to whether judges abuse their discretion when they impose unusual (some would say creative) forms of punishment.  For example, recall the stories on judges ordering defendants to go to church, to sing a song, or to suffer public humiliation.

Now comes news that a judge in Florida told a defendant she would reduce the defendant's sentence one day for every pound of weight he lost.  The defendant reportedly weighed 345 pounds at the time. He lost 25 pounds in 20 days and received early release.  Professor Jonathan Turley, who criticized judicial use of humiliation as abuse of discretion in the past (here), has also commented on this new case.   Go here for his comments.

California Supreme Court will hear disgraced journalist’s moral character case

Stephen Glass was once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital, producing knockout articles for magazines ranging from The New Republic to Rolling Stone.”  It was later discovered, however, that many of his articles were completely fabricated and he was exposed as a fraud.

Glass wrote some of the false articles while attending Georgetown law school.  He graduated and passed the bar exams in New York and California.  However, he has not been admitted to practice in either state.  According to the California Bar Journal, he withdrew his application in New York after learning his admission would likely be denied, and his application in California was, in fact, denied by the Committee of Bar Examiners (CBE).

This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.

This is the first time in 11 years that the California Supreme Court has agreed to hear a case of a candidate denied admission to the State Bar because of moral character issues.

The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation."

This is an interesting case, and a close call.  On the one hand, there should be no doubt that the conduct would have been sufficient to get Glass disciplined if he had engaged in it while he was a lawyer.  And, given the fact that he engaged in the conduct while he was a law student, I think there is plenty of support for the argument that Glass lacks the character expected of a member of the profession.  For a similar case, see In re Lamberis, 443 N.E.2d 549 (Ill. 1982), a case in which the lawyer was disciplined for engaging in plagiarism.  One interesting aspect of that case is the wide range of sanctions considered by the those evaluating the conduct.

On the other hand, Glass has argued that the conduct is now in his past, that he has learned his lesson and that he has been rehabilitated.  And this is the key.  What kind of evidence of "rehabilitation" should be require to defeat the notion that past misconduct can be used to predict future conduct?

That is a tough question indeed.  Do you believe that people "can change"?  How much do you trust people when they say "I won't do it again" - whatever that "it" is?

According to reports, Glass apparently has the support of some of the editors of the publications he lied to in the past, but the CBE contends that Glass' actions do not support his allegations arguing that Glass made misrepresentations to the New York bar when trying to win admission there.

I find this last allegation very troubling.   How can we really trust a candidate who says we should be confident we can trust him if it is true he has lied in an attempt to get admitted?  If I were voting on this case, and the CBE proved the allegation that the candidate made misrepresentations in the bar application in NY, I would vote against admission.

No date has been set for oral argument at the Supreme Court, so stay tuned.

Tuesday, November 29, 2011

Proper sanction for refusing to reimburse unearned fee?

The Legal Profession blog is reporting today on a case with an interesting set of facts:  An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case. The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.

Based on these facts, the Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance."  The court's order is available here.

I have no problem with the court's decision.  The conduct was unethical and the refund was provided too late.  My question is whether the sanction was adequate.  I have often posted comments about this.  What makes the conduct worth a one month suspension, as opposed to a two month suspension, for example?

I think a one month suspension is too lenient in this case, but I am not sure what would be appropriate.  What do you think?  I guess the way to find an answer is to research the law of the state to see if there are other similar cases.

Monday, November 28, 2011

I thought prosecutors have an obligation to behave ethically... silly me!

A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence.

I am sorry, but this is so absurd it is painful.  Granted, there is a difference between contempt and disciplinary action, but this "reasoning" is one of the dumbest things I have heard all year.  To say that clearly unethical conduct is not worthy of punishment because the court did not specifically tell the lawyers they needed to be ethical makes a mockery of the whole notion of professional responsibility! 

And people wonder why there is so much prosecutorial misconduct.  Here is the answer: because there is no accountability.  Judges need to understand that to minimize prosecutorial misconduct they need to start imposing liability (whether civil, criminal or disciplinary) for unethical conduct.

For more on this story see The New York Times, Jonathan Turley's blog, the Wall Street Journal's law blog and the Blog of the Legal Times.

Legal Zoom Sues North Carolina Bar - UPDATED

Last August I reported that Legal Zoom.com settled a class action filed in Missouri claiming that it was illegally practicing law in the state of Missouri.  Go here for more details.

Legal Zoom is now back in the news. The Wall Street Journal law blog is reporting that Legal Zoom has filed a lawsuit in North Carolina claiming the State Bar has accused Legal Zoom improperly of engaging in the unauthorized practice of law. The suit asks the court to declare that Legal Zoom is authorized to sell its self-help legal service on the Internet.  Go here for more information.

UPDATE: 11/28/11:  The Lincoln Tribune recently published a story on this case here.
Thanks to the Legal Ethics Forum for this link.

Sunday, November 27, 2011

How not to practice law update

Here are the links to the "how not to practice law list" so far.  As you can see, these are examples of incredible but true stories of conduct that is so basic you'd think anyone would know that what they are doing is improper.  Nothing complicated here. In many of the cases, you can say the conduct is simply just plain stupid...  The list would be funny, if it weren't for the fact that it is a serious problem that there are so many lawyers out there getting in trouble for these kinds of things.... Each item is a link to its own post/story.

have sex with client, then charge her for your services

help your boyfriend escape from prison, wait a couple of hours, then post a photo of the two of you on Facebook

on appeal, prepare a lousy brief that does not support your arguments

beat up your client with a baseball bat

steal money from clients, then "in your defense" argue you needed the money

bring your recreational drugs to court, then drop them in front of police officer

post photos of your client's undies on Facebook and make fun of your client and his family in the process

do everything wrong when leaving your firm

video: how not to conduct a hearing (follow up on that story, here)

if you are a judge, preside over the bond hearing of the person accused of a crime against you

if you are a judge, let your clerks decide your cases while you are on vacation

misrepresent your assets in a bankruptcy application (even though you are wearing them in public)  (or hide your assets in a bankruptcy case)

don't pay taxes (particularly if you are a former IRS attorney and a tax lawyer)

don't take depositions seriously

if you are a judge, try to establish inappropriate personal relationship with attorney who appears before you

stop paying child support

use your client's money to pay gambling debts

pull a gun on a process server when he is trying to hand you some papers

lie during the disciplinary process to cover up your mistakes (more recently, here)

try to cheat on the bar exam

host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user

claim you forgot your client was your client in order to avoid correcting your client's perjured testimony during discovery

allow your client to be convicted even though he was in prison at the time of the crime

double bill the court

prepare a will for the client in which the client names you or your wife as the beneficiary

write incomprehensible complaints and briefs

slap the witness in the face during a deposition

bring drugs with you when you visit clients in prison

use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"

represent buyer and seller in a transaction, then represent one of them against the other after transaction is done

show the jury the evidence the judge had excluded

have your spouse lend money to client

don't pay attention to the details

inflate your bills

start to practice law before you are admitted to the bar

abuse your power as a prosecutor by offering leniency in exchange for sex with defendants or their mothers

don't pay your student loans

offer to help law students cheat

claim that everything is confidential

charge a fee for doing nothing

try to help your client by breaking the law

advertise you have "associates" when, in fact, you don't

tell the jury you think your client is guilty

pretend to be a doctor  (more recently here)

try to influence the judge

show up drunk, (same problem, more recently here)

have sex with clients while visiting them in prison (a similar, more recent case here)

sell the defendant's property

be a pimp

charge $3,500 an hour AND be rude to the judge

plagiarize

break the law and obstruct justice

tell your divorce client's wife you want to go out with her

have sex with client's wife

continue to practice during your suspension (same problem, more recently here)

make sure you tell the jury the information the judge had excluded

pay your employees "under the table"

ask client to pay fees with drugs (same, more recent case here)

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

lie

get married when you are already married (same problem, more recently here and here)

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

Thursday, November 17, 2011

Solicitation in the Penn State sex scandal

Eric Turkewitz comments (and he "names names") on attempts to find and solicit sex abuse victims here.

Wednesday, November 16, 2011

Be careful what you wish for

Here is an interesting recent case out of the Illinois Appellate Court.  In this case, a criminal defendant appealed his conviction - which was the result of a negotiated plea - arguing that he agreed to the deal based on his lawyer's bad legal advice.  According to the agreement, he received a sentence of 27 years in prison.  Only problem is that, because of the circumstances of the case, the mandatory minimum sentence should have been 25 years more.  So the court of appeals grants his request to set aside the conviction and remands the case to allow the defendant to withdraw the plea "and proceed to trial if he so chooses" only now he is facing, at a minimum, about twice the sentence.  So he got what he wanted but now he is much worse off.

So what happened here?  I don't know why or how the negotiated plea was obtained.  Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law.  And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law?  Or, again, was it a case where the lawyer simply did not know the law?  And then there's defendant's counsel on appeal.  Why would he recommend to appeal a sentence when the result could ONLY be worse for the client?  Did he inform the client of this and let the client decide or did the lawyer not realize it?  The case is called People v McRae and it is available here.

Interestingly, this is not the first time I've heard of something like this.  Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.

So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.

The rest of the decision in McRae is also interesting.  The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail."  In the letter, the defendant essentially confessed to committing the crime.  Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal.  On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it.  Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.

Prosecutor's book contract results in reversal of conviction and more

Model Rule 1.8(d) states that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."  Most jurisdictions probably have a similar rule, the purpose of which, obviously, is to make sure an attorney is not distracted by his or her personal interest in making money off the future book or movie.  It is a pretty simple rule and I don't remember having seen too many cases about it.

In one of those rare cases, the Legal Profession blog is reporting today that the Indiana Court of Appeals has reversed a murder conviction in a case where the prosecutor had entered into a (now cancelled) literary contract for a book.  The case is Camm v Indiana and it is available here.  For more on the case, go to the Legal Profession blog here.

LSC's funding to be cut, probably by 14%

The Chicago Daily Law Bulletin is reporting that the Legal Services Corp. (LSC), which awards grants to legal aid providers throughout the nation, could see its funding slashed by nearly 14 percent in fiscal year 2012.  There are three legal aid providers in Illinois that rely heavily on federal funding to provide legal assistance to those in need: Land of Lincoln Legal Assistance Foundation, Legal Assistance Foundation of Metropolitan Chicago and Prairie State Legal Services Inc.  The cuts in funding will likely result in cuts in staff and fewer services at a time when there are more poor people and more need for those services.

Please consider giving generously to agencies providing legal aid when choosing charities to contribute to this coming holiday season (or at any other time in the future).

UPDATE:  Public Citizen has more information here, including a link to the 2012 budget deal.

Monday, November 14, 2011

Supreme Court to hear case on possible attorney immunity

The Supreme Court has announced its schedule for oral arguments during the month of January and it includes a case on the law of lawyering and torts. The case is called Filarsky v. Delia is about there private lawyers should have the benefit of immunity for the consequences of their conduct while working temporarily for the government. I have mentioned the case before here. For more information and links to all the relevant documents, including the lower court's opinion and the parties' briefs go here.

Yet another case of possible prosecutorial misconduct for not disclosing exculpatory evidence; this one from Texas

I have been following the case before the Supreme Court on prosecutorial misconduct for failing to disclose exculpatory evidence (see here, here and here), and I have commented on the relationship between that case and last year's case Connick v Thompson in which the exonerated man sued the DAs office seeking compensation. (for more on that one type Connick in the "search this blog" box on the right under my photo which will take you a a lot of links on the case.)

Today, in yet another case of a defendant getting exonerated after spending a long time in prison (two decades in this case), the Legal Ethics Forum is reporting that the prosecution is going to have to answer some very hard questions about the prosecutor's fulfillment of his duty to disclose.  For more go here.

Conflict of interest costs law firm $250,000

Last month, the Illinois Appellate Court released an interesting case (from earlier this year) that addresses the consequences of agreeing to represent a client knowing that doing so would constitute a conflict of interest.  As the title of this post suggests, that consequence was that the firm was not allowed to recover a $250,000 fee.  Although there are some inconsistencies within the court’s reasoning, I think it reaches a correct result.  The case is called In re Marriage of Newton and it is available here.

The story behind the case started when a husband consulted a lawyer about hiring the lawyer to represent him in his divorce.  Having decided not to represent the husband, the attorney decided to represent his wife instead, who consulted the lawyer some time later.  After the husband filed a motion to disqualify the wife’s attorney (and his firm), the court held some hearings, the results of which were appealed which led to more hearings and eventually, after about two years of litigation on the question, the lower court not only disqualified the firm but also ordered that it did not have a right to recover any fees.  When the firm protested in court, the judge held the lawyers in contempt.

On appeal from the contempt order, the court believed that to discuss the validity of the contempt order it was also necessary to discuss the validity of the disqualification order and the order barring the recovery of fees.

Before we go any further, it should be noted that the fee issue was based on a specific statute that allows a wife to make her husband pay for her lawyer.  This is an important fact because the firm in question was requesting that the party it supposedly betrayed pay for its fees.  The court did not like that idea.

The court began its analysis by pointing out correctly that, an attorney-client relationship can be created based on the client’s belief that it has been created and does not require a formal handshake, or signing of a contract.  For this reason, given the evidence adopted as true by the lower court, the court concluded that a professional relationship was established with the husband during the initial interview.

This is okay, but it omits the fact that the attorney clearly declined to accept the representation at the end of the interview.  The case is better viewed as an example of the case of a prospective client under Rule 1.18, but since that rule did not exist at the time of the facts of the case, the court analyzes the issue under Rule 1.9 which is about the duty owed to former clients.

If the husband is a former client, then Rule 1.9 prohibits the lawyer (and 1.10 extends that to all other lawyers in his law firm) from taking on the representation of the wife in the divorce.  Knowing this, the firm nevertheless agreed to represent her.  (Note that during the evidentiary hearings the wife testified that the lawyer admitted to her he knew taking her case would create a conflict; but the lawyer denied saying this.  The lawyer also denied having taken any notes during his meeting with the husband, but the husband asserted he did.  The court did not give much credibility to the lawyer.

Thus, assuming as true that the attorney agreed to represent a client with full knowledge that doing so would create a conflict of interest, the court found that the agreement for services was null and void from its inception and thus did not give the lawyers the right to enforce it.  Citing the principle that an attorney may not receive fees from the party he has wronged, the court held the lawyers were not entitled to the fees they claimed to have earned during the two years they represented the wife.

The firm argued that it should have been compensated for the work done for the client up to the time it was disqualified.  The court disagreed, however, finding that the firm had not been litigating in good faith whether its representation of the wife constituted a conflict, because it had already admitted to her that it was.  One thing is to say that the firm did not think there was a conflict and was willing to fight for two years to argue the point, and quite another to say that the firm knew there was a conflict but wanted to fight for two years to be allowed to keep the case anyway.  The court saw the case more like the latter than the former.

For me the key to this case, which the court does not emphasize enough, is the fact that the lawyer/firm actually knew going in he/it was engaging in a conflict of interest.  I have no problem finding that under those circumstances the firm should pay the price.

I do worry, however, that read more generally, the case can penalize a firm that is caught in conflict (not of its own fault).  Take a case where two firms merge in the middle of the litigation creating a conflict in a case, or a case, like the famous Cunningham case used in many casebooks, where an offer to settle the case creates a conflict for the opposing firm.  In such a case, I think it would be fair to allow the conflicted firm to withdraw and allow it to recover fees for the work already performed for the client before it realized it had a conflict including for the period of time during which the firm acted with a conflict but had not realized it yet.

In the end these two possible approaches open the question whether the notion of conflicts of interest should be seen as a sort of “strict liability” case where the fault of the firm does not matter.  According to this approach, if there the firm acted with a conflict, the firm acted wrongly and should not recover its fees. According to the other view, if the firm acted with a conflict, it should be allowed to recover the fees for the services rendered until it is officially disqualified as long as the firm acted without knowledge or fault.

Of course, the question gets more complicated if it can be argued that the firm acted with the conflict because of its own negligence.  I would say that such a case should be resolved just as if the firm acted intentionally (as in the case I am discussing here), because firms have a duty to use reasonable care to avoid conflicts.

One last point: I mentioned at the top that there are some inconsistencies in the analysis of the court and here it is.  Having decided that the attorney created a professional relationship with the husband during an initial interview - even though the interview resulted in the lawyer rejecting the case - the court goes on to cite some older cases that hold that for there to be an attorney-client relationship there has to be a contract and a clear meeting of the minds.  The expressions cited from these cases, clearly contradict the principle upon which the court based its decision.

The result of the case, however, it correct, it seems to me because the key is not whether a relationship was formed during that interview, but the fact that the attorney stated he knew taking on the new case would be a conflict and acted in a way that showed he did not care.

Fortunately, looking forward any future cases with similar facts would be decided using the new rule on prospective clients (Rule 1.18) which should make the analysis a bit more straightforward.

Illinois Appellate Court reverses conviction because of ineffective assistance of counsel based on conflict of interest

Last September, in a short, but well written opinion, the Illinois Appellate Court addressed the issue of whether a conviction should be reversed due to a conflict of interest.  This was the second case in which the court reversed a conviction for ineffective assistance of counsel that month.  The case is called Illinois v Dopson  and it is available here.  My comment on the other case decided that month is here.

In Illinois v Dopson, the attorney for the accused was representing two criminal defendants concurrently in separate cases.  The attorney did not know that one of these defendants was a confidential informant who provided all the information used to arrest the other client.  When the state disclosed to the attorney that one of his clients would be used as a witness against the other client, the attorney ceased to represent the client who was going to be a witness for the state.  He continued to represent the other client, though, and that client was convicted.

On appeal, the client claimed his attorney has provided ineffective assistance of counsel because he continued to represent him while he had a "per se" conflict of interest.  The court agreed.

The court started by pointing out that even though Strickland v Washington usually requires the defendant to show serious attorney error and prejudice, a showing of a per se conflict, by definition, satisfies both prongs of the test.  Operating under a per se conflict is such a serious error there is no need to show prejudice.  Reversal is automatic.

Since Illinois has decided already that prior or contemporary representation of a State's witness constitutes a per se conflict, the Court had no problem finding the case required reversal.

The State claimed there was no conflict of interest because the attorney was not contemporaneously representing the two clients at the time of the defendant’s trial. However, all that means is that the conflict went from being a concurrent conflict to a successive one. Either way, as the court correctly states, “the State’s attempt to narrow the scope of the per se conflict-of-interest rule belies its underlying purpose” which is to make sure an attorney does not find himself in a position where the attorney can’t represent the interests of one client because of his duties to another. As the court states, this “presupposes that defense counsel’s vigorous cross-examination of the State’s witness should be unhindered” by the need to protect a former client’s confidences. At the time of the trial, the attorney was prevented from attempting to elicit information obtained during that prior representation. Whether such information existed, or would have been useful to the defense, is irrelevant.

Finally, although it had stated it was not necessary to establish prejudice, the court points out that the attorney’s cross examination of his former client “was mild, at best.” The attorney did not attack her credibility or point out her possible bias.

Thus, any way you look at it, the court found the circumstances showed a clear conflict of interest which required reversal of the conviction.

Illinois Appellate Court reverses conviction (based on a negotiated plea) because of ineffective assistance of counsel

Convicted defendants often argue ineffective assistance of counsel on appeal, but the argument is not successful most of the time.  Last September, however, the Illinois Appellate Court decide two cases in favor of defendants claiming ineffective assistance of counsel.  I will comment briefly on both of them in separate posts.  Here is the first one.

In this first case, the court set aside a negotiated plea, after finding that the defendant's attorney had rendered ineffective assistance.  In that case, the defendant argued he had agreed to the plea offer based on trial counsel's representation that there were no witnesses available to testify on defendant's behalf, when, in fact, there was one such witness.

The court explains that although to present a witness in a case is a discretionary decision for which usually does not support a claim of ineffective assistance of counsel, in this case the attorney's conduct was not deciding not to use a witness but failing to investigate if there were any witnesses.  The court added that whether defense counsel was ineffective for failure to investigate is generally determined by the value of the evidence that had been available but the attorney failed to find.

Using that standard, the court found that the defendant was able to make a case of ineffective assistance of counsel under the Strickland v. Washington standard (attorney error and prejudice).

The case is called People v Clark and it is available here.

Greetings from Switzerland

I am coming to you "live" today from Lucerne, Switzerland!  I came here to teach a class on International Torts at the University of Lucerne's Law School, with which my law school has an exchange program.  If you are interested in what I will be covering in that course, go here.  The book I put together for the course is about 150 pages long right now, but it will be shorter next summer when the Supreme Court decides some of the cases I have in the book.  For more about that go here, here and here.

Friday, November 11, 2011

Happy Birthday to the Blog!

Today is this blog's third anniversary!  I started it on November 11, 2008, just a few days after I had started my Torts blog.  Since then I have posted more than 800 posts!  I thank you for your support and hope you will continue to follow the blog in the years to come.

Tuesday, November 8, 2011

Oral argument recap in Smith v. Cain: it did not go well for the prosecution!

A few days ago I posted a note about a new case before the Supreme Court on prosecutorial misconduct in New Orleans called Smith v. Cain. The oral argument before the Supreme Court was today and apparently it did not go well for the office of the prosecutor.  As reported by Lyle Denniston of the SCOTUS blog, the justices pretty much actually suggested to the attorney representing the DA's office that she should just give up.  Here is an excerpt of Denniston's argument recap:
There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain . . .

. . . .   The aggressive exchanges [between her and the justices] were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?” Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument . . . 
It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?”   . . .
At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.
But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand.  . . .
I guess this should not be surprising, given the nature of the allegations and the arguments involved, but it is upsetting that it comes a year too late for John Thompson, who spent years in prison because of prosecutorial misconduct in the same office.  The Supreme Court reversed a verdict in his favor last year.  (Go here and scroll down for a lot of information on that case.)

You can read the full article on the oral argument here.

You can read the transcript of the oral argument here.

UPDATE 11/12/11: The audio of the oral argument in Smith v Cain is now available.  To listen to is now click here here.

UPDATE 1/12/12:  The Supreme Court announced the decision in Smith v Cain today.  Go here for more information.

Sunday, November 6, 2011

Supreme Court to hear another case on prosecutorial misconduct from New Orleans

As you probably remember, last year the Supreme Court decided Connick v. Thompson, which has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years," absolving the New Orleans office under DA Harry Connick, Sr. of complaints that it had failed to train prosecutors about their duty to disclose exculpatory evidence.  (If you type "Thompson" or "Connick" on the "search this blog box" on the right side panel (under my name), you will find a number of entries with a lot of information about that case.)

At 11 a.m. this coming Tuesday, the Supreme Court will consider new claims of misconduct by prosecutors in the New Orleans district attorney’s office when it hears oral arguments in a case called Smith v. Cain.

The case involves the same complaint:  that the prosecution team for Orleans Parish follows a continuing policy of refusing to hand over exculpatory evidence to defense lawyers.

Go here for more on the background of the case.

Go here for access to all the relevant documents about the case, including the lower court opinion and the briefs of the parties.

Friday, November 4, 2011

Audio of Supreme Court oral arguments is now available

A few days ago, I wrote about two cases before the Supreme Court on ineffective assistance of counsel.  See here.   Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  You can now listen to the oral arguments here and here.

Thursday, November 3, 2011

Article on ethical issues related to the representation of older clients and clients with diminished capacity

The most recent issue of the Illinois Bar Journal has an article on the ethical issues related to the representation of older clients and clients with diminished capacity.  You can read the full article here.

Article on prosecutorial misconduct

The Yale Law Journal online has published an essay on prosecutorial misconduct called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct. You can read it here or here.

Thanks to the Legal Ethics Forum for the link.

Is blogging a form of advertising?

For a number of years, criminal defense attorney Horace Hunter has used a blog as part of his firm's website to write short articles about what he considers to be important issues related to his cases.  Recently, the Ethics Counsel of the state of Virginia contacted him to tell him his blog was considered a form of advertisement and was not in compliance with the state rules.  Eventually, the bar has brought a misconduct charge against Hunter, who argues the blog is news and commentary, and that the bar’s attempt to discipline him, or to force him to add a disclaimer stating the blog is an ad, is a violation of his First Amendment rights.  You can take a look at the blog itself here.

This is a very interesting question and, given the rising number of firms that host blogs, it can have significant implications.

The case has generated a good deal of attention.

Here is an article in the Washington Post discussing the issue.

You can listen to podcasts discussing the case here and here.  The second one of these is an interview with attorney Hunter himself.

Here some very insightful comments from other bloggers:  here and here.

To paraphrase some of these comments, the problem with the case is that the issue should be about the content of the publication not about the type of publication.  The question should not be whether a blog is a form of advertising, but whether what is said in the blog is advertising.  As Carolyn Elefant of MyShingle.com states:
. . . .if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  
I tend to agree with this statement, and it is easy to apply the analysis if the blog only publishes the same type of articles all the time.  But a blog is not just one article.  Each entry is an article in and of itself.  What if some are like ads and some are like law review articles?

Maybe a good compromise would be to require a general disclaimer in the firm's website (which is probably required already anyway), but not in each individual blog entry. 

Wednesday, November 2, 2011

Discussion on the lawyering cases before the Supreme Court

Yesterday, the Supreme Court Blog hosted a discussion of the two cases on ineffective assistance of counsel the Court heard a few days ago.  You can read all the comments here.

Tuesday, November 1, 2011

Supreme Court hears cases on ineffective assistance of counsel; transcripts are available

Yesterday, the US Supreme Court heard oral arguments in two cases on the law of lawyering: Lafler v. Cooper and Missouri v. Frye.  Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  Here is a link to an article providing all the background on the cases.

In Lafler, the attorney mistakenly told the defendant that the state could not establish a necessary element of its case.  Based on that advice, the defendant rejected a guilty plea, was convicted at trial, and was eventually sentenced to a much longer prison term.

In Frye, the defendant’s counsel simply failed to inform him that a plea bargain had been offered at all, allegedly leading him to enter a guilty plea on terms far less favorable than he would have received had he agreed to the state’s offer.

The full transcript of the oral argument in Lafler can be found here.  All relevant documents in the case can be found here.

The full transcript of the oral argument in Frye can be found here. All relevant documents in the case can be found here.

The Associated Press reports (here) that the Court “seemed reluctant” to offer a second chance for plea bargaining after sentencing had taken place, while Nina Totenberg of NPR reports (here) that the Justices “seemed a bit more conflicted” in Frye than in Lafler. Adam Liptak also has coverage of the arguments for the New York Times (here).  Thanks to Nabiha Syed of the SCOTUS blog for these links.

Monday, October 31, 2011

Pro bono conversation questions of the week

The national pro bono celebration conversation ends this week with the following questions:

What should the relationship be between professional development and pro bono services?

Go here to join the conversation.

Friday, October 28, 2011

Firm denied fees for misconduct in bankruptcy case

Freivogel on Conflicts has a new case of interest to bankruptcy lawyers.  In this case, a firm was not allowed to recover fees because of what the judge called the law firm's almost wanton disregard for the disclosure requirements of the Bankruptcy Code and Rules.  The judge found the firm had ample opportunity to cure the problems when facts were discovered or deficiencies were pointed out by the U.S. Trustee.  Because it didn't, the judge concluded that "severe sanctions are warranted" and added that, in light of the firm's "steadfast assertion that it did nothing wrong, I would have serious concerns about the veracity of its disclosure statements in future cases if the firm thought it could get away with a minor slap on the wrist."

The case is called In re Gluth Bros. Const., Inc., Slip Copy, 2011 WL 5023417, Bkrtcy.N.D.Ill.,2011.

ABA Commission has released new paper on alternative litigation finance

At its meeting in Denver, October 14-15, 2011, the ABA Commission on Ethics 20/20 decided to file its Draft White Paper on Alternative Litigation Finance as an Informational Report to the ABA House of Delegates. The Commission seeks to share this Draft White Paper with interested individuals and entities for their consideration prior to the filing deadline of December 2, 2011.  Go here to read the paper.

The Paper's executive summary states as follows:

     The general conclusion of this White Paper is that attorneys must approach transactions involving alternative litigation finance with care, mindful of several core professional obligations. An attorney must always exercise independent professional judgment on behalf of a client, and not be influenced by financial or other considerations. See MODEL RULES OF PROF’L CONDUCT R. 2.1 (2009) . . . Moreover, an attorney must not permit a third party to interfere with the exercise of independent professional judgment. Numerous specific provisions in the Model Rules, including conflicts of interest rules and rules governing third-party payments of fees, reinforce the importance of independent professional judgment. See MODEL RULE 1.7(a)(2) (representation materially limited by lawyer’s responsibilities to a third party or the lawyer’s own interests); MODEL RULE 1.8(e) (with limited exceptions, lawyers may not provide financial assistance to client); MODEL RULE 1.8(f) (lawyer must not accept compensation for representation from third party without informed consent of client and unless it will not interfere with independent professional judgment); MODEL RULE 1.8(i) (lawyers may not acquire proprietary interest in subject matter of representation); MODEL RULE 5.4(c) (lawyer may not permit fee payor to direct or regulate lawyer’s professional judgment).

     In addition, attorneys must be vigilant to prevent disclosure of information protected by Model Rule 1.6(a), and to use reasonable care to safeguard against waiver of the attorney-client privilege. Any infringement on rights that clients would otherwise have, resulting from the presence of alternative litigation finance, requires the informed consent of the client after full, candid disclosure of all of the associated risks and benefits.

     Finally, lawyers must fully explain the terms of funding transactions and ensure that clients are aware of the risks these transactions present. If they are not experienced in dealing with these funding transactions, lawyers who advise clients in connection with alternative litigation finance must become fully informed about the risks and benefits of these transactions, in order to provide competent advice to clients. Because this is a new and highly specialized area of finance, it may be necessary for a lawyer to undertake additional study or associate with experienced counsel when advising clients who are entering into these transactions.
For more information about the work of the Commission go here.

How not to practice law: Continue to practice after you are suspended; get disbarred

Here is a simple principle we have seen before.  If you are suspended from practice, it means you CAN'T practice!!  The Legal Profession blog is reporting that an attorney who had continued to practice after being suspended for six months was disbarred by the New York Appellate Division for the First Judicial Department.  Go here for more details.

Client's attempt to be a smartass during deposition results in judgment against him

The Nevada Supreme Court has upheld a casino’s summary judgment for $2 million against Joe Francis, creator of the soft porn “Girls Gone Wild” franchise for what District Judge Michelle Leavitt called “the most ridiculous exercise of the Fifth Amendment I think I’ve ever seen” during a deposition.  Go here for the details.

This is not the first time Francis acted like this during a deposition.  Here is an excerpt of one of them:
Q. Have you ever been convicted of a felony?
A. I don’t understand what that means.

Q. You don’t understand what being a convicted felon is?
A. No. Can you explain it to me?
Q. Did you serve any time in jail?
A. What do you mean “serve”?

Q. Do you know what a prisoner is?
A. No.
Q. Do you know what a cellmate is in jail?
A. No.
Q. Do you know what a jail is?
A. Sort of

These deposition antics nearly caused a default judgment against him.

In the most recent case, after the deposition the casino/plaintiff filed a motion for a summary judgment to which Francis replied that he wanted to withdraw his Fifth Amendment answers and continue the deposition. However, the judge refused to reopen discovery and granted summary judgment in favor of the casino. Francis appealed but the Nevada Supreme Court agreed with the District Court’s decision, noting that although answering some of questions at his deposition could have been incriminating, "his refusal to answer nearly every question was unjustifiable.” Francis now has to comply with the judgment which ordered to pay $2 million.  With interest and court costs, could reach $3 million.


Thanks to the Legal Ethics Forum for the link.

Monday, October 24, 2011

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How do we ensure high quality pro bono work?  Could well-trained legal assistants and paralegals assume greater responsibility and provide specific forms of legal relief? What matters would be appropriate to specialized form of representation?

Go here to join the conversation.

Prospective waivers

A few days ago, I discussed the use of prospective waivers with my students.  Now, here is a link to an article criticizing their use.  Here is an excerpt that summarizes its position:
What started as a trickle has now become a flood, as major law firms have embraced the practice of inserting into every retainer letter, often buried on page 5 in paragraph 16, a wholesale prospective waiver that would permit the law firm to take on any representation against the new client so long as the matters are not substantially related. No limitation as to matters that are not waivable under Rule 1.7(b)(1). No limitation as to time. No limitation as to matters not litigated. No limitation as to the subject matter of the adverse representation. No limitation as to the identity of the adverse party or parties who would be represented adverse to the client that is granting the prospective waiver. Can such a waiver come close to being given with informed consent? Of course not.
You can read the full article here.  The article is by Larry Fox, a former member of the ABA Standing Committee on Professional Responsibility.  For some comments on the article go to the Legal Ethics Forum, here.

Thanks to the LEF for the link to the article.

Sunday, October 23, 2011

Illinois Lawyer Now invites you to celebrate Pro Bono week

Here is a link to a short article on Illinois Lawyer Now inviting you to join the celebration of National Pro Bono Week by Hon. Barbara Crowder.  It starts:  "Do you pro bono? If so, show you are “Pro Bono Proud” during National Pro Bono Week by attending a celebratory event. If not, why not? More opportunities abound to find a pro bono project that meets your time and abilities than ever before. And even more ways to pro bono may be coming to a circuit near you."  Go here to read the full article, and do join the National Pro Bono week activitites.

Monday, October 17, 2011

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How can we better use technology? What kinds of information could/should we disseminate, and how?  How do we serve the hard to reach geographical communities?

Go here to join the conversation.

Friday, October 14, 2011

Internship opportunity for students

The Ethics and Professionalism Committee of the ABA Section on Litigation is seeking an unpaid student intern to assist its web editors. The intern will write weekly short articles (300-500 words) discussing recent ethics opinions, rule changes, or anything else relevant to ethics and professionalism as it relates to the practice of law. The intern's articles will be edited and then published online under the intern's name, which will allow him or her to accumulate an online writing portfolio accessible by search engines.

Law students interested in legal ethics are strongly encouraged to apply. To apply, please e-mail Josh Camson (josh@joshcamson.com) web editor for the Ethics and Professionalism Committee with resume, a cover letter, and a brief writing sample (no more than two pages).

Former Texas prosecutor, now a judge, accused of withholding exculpatory evidence.

A former Texas prosecutor, now a sitting judge, has been accused of withholding exculpatory evidence in the prosecution of an Austin-area man who spent 25 years in prison for a murder he didn't commit.  Go here for the details.

Thursday, October 13, 2011

Access to clients to film documentary while case is ongoing

Friend of the blog Alan Crede, of the Boston Personal Injury Lawyer Blog, has posted a very interesting comment on the very nature of our civil justice system, particularly on the fact that the system depends on the evaluation of evidence that is available to the jury while there may be other evidence that the jury never gets to see.  You can read his comment here.

As every lawyer and law student knows, our judicial system is not based on the search for the objective truth of the facts at issue but on the concern over protecting the due process of the process itself.  That is the nature of the adversary system.  The rules of evidence allow for the exclusion of evidence that might be relevant because the policies upon which those rules are based are more important to us than the possible benefit we'd get from the admissibility of that evidence.  This is obviously true in criminal cases, but it is not less true in civil cases.

In his comment, Alan wonders about a number of things including the fact that sometimes the most important evidence appears to be the evidence that is not available to the jury.  Most of the time, we don't realize this because in most cases that evidence is, simply, never disclosed.  But sometimes the general public gets to see evidence (through the media, for example) that the jury does not get to see.  And in many of those cases, the impression the public gets is different from that reflected by the jury's decision.

Some see this as a bad thing; others as a good thing.  It depends on what you think of the jury system and the policy behind the rules of evidence to begin with.  In fact, it depends on whether you believe the adversary system of judicial decision-making (at the trial level, at least) is a good idea.

Alan concludes that it is a mistake to overrate the capacities of our judiciary.  He warns that lawyers sometimes are blind to the system's faults and limitations because of a belief that the adversary system is "the greatest engine for the search for truth."  And when that happens "we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom."

All that aside, Alan asked me to comment on a slightly different aspect of the issue.

His comment was prompted by the documentary "Paradise Lost" about the "West Memphis Three" case during the filming of which the attorneys for the defendants allowed the filmmakers to have access to some of their conversations with their clients, and to interview the clients while the case was still ongoing.  Alan wants to know my take on the ethics of the defense team's allowing such unrestricted behind-the-scenes access.

There are several issues that come to mind. First, there is the issue of whether the lawyers were trying to "try the case in the media" rather than in the courtroom.  I don't think so, simply becasue the the documentary was not going to be ready before the end of the case.  The footage would only become available until after the case was over.  However, it can be argued that the lawyers were trying to build a record that could later be used to support an appeal.  That is possible, but it is not different from many other cases which generated documentaries - often to support the defense.

I think the more interesting question is whether it is improper to allow the filmmakers to follow the lawyers and clients as they prepared for trial not knowing in advance what was going to be shown in the final version of the documentary.  As long as the clients gave informed consent, I see that as a tactical decision that may or may not turn out to be a good decision down the line.  It is pretty risky, but I guess the lawyers felt strong enough something positive would come out of it.  The one thing the lawyers had to be careful about was disclosing confidential information "on the air" that they would not want broadcast later.

Lastly, of course, I can only assume the lawyers in this case did not have an agreement with the filmmakers to get a media deal since Rule 1.8(d) (some version of which has been adopted in most, if not all, states) says that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."