Monday, March 28, 2011

Proper punishment or abuse of discretion?

At the end of 2009, I posted a comment on the issue of whether humiliation is a proper punishment in our criminal justice system or whether it should be considered an abuse of prosecutorial or judicial discretion. A few days later I posted an editorial on the subject by Prof. Jonathan Turley published by USA Today (here)

Now comes news that a judge and prosecutor have demanded that Willy Nelson sing a song in court as part of a plea agreement in a simple marijuana possession case. Prof. Turley, consistent with his position in the article cited above, wrote today "I hate to be a cold blanket, but find this neither funny nor tolerable for a legal system. Both the judge and the prosecutor appear to be intoxicated by celebrity crime. . . . If these facts are correct as widely reported, there should be an investigation by the bar of both the role of the prosecutor and the court. Dean-Walker can still redeem herself by treating Nelson like other defendants and sanctioning the prosecutor if he did in fact demand this condition for a settlement." You can read his comment here.

Can an attorney respond if the judge asks whether the attorney knows why the client is missing?

Suppose that night before a hearing is supposed to start, the mother of a criminal defense attorney tells the attorney that her son (the client) is not going to show up. Then, when the judge notices the defendant is missing, the judge asks the lawyer where the client is or whether the lawyer knows why the client is not there. What should he lawyer do?

A short ethics opinion by the San Diego County Bar Association concludes that, under the California Rules of Professional Conduct, the attorney can't do anything. The attorney simply can't answer the judge’s question. If the attorney says she does not know, she is being dishonest with the court in violation of her duty of candor, and if she discloses the information provided by the mother, the attorney would be in violation of her duty of confidentiality.

Thus, the only proper response by the attorney would be that she can't answer the question. The Opinion (SDCBA Legal Ethics Opinion 2011-1) is available here.

Thanks to the Legal Profession blog for the link.

Colorado DA implements a plan that creates incentives for DAs to violate their duties

Should prosecutors receive bonuses if they score relatively high conviction rates? The Wall Street Journal Law Blog is reporting (here) that according to a plan devised by Colorado district attorney Carol Chambers assistant district attorneys are eligible to earn an average $1,100 reward if they participate in at least 5 trials during the year and get felony convictions in at least 70% of their trials. Plea bargains don’t count.

Am I missing something or is this institutionalizing a systems that by definition creates a conflict of interest between the (personal/financial) interests of the DA and the duties under rule 3.8 that require prosecutors to act as ministers of justice and not just as advocates?

According to the story, Chambers told the newspaper that her bonus system is similar to incentive plans used by private employers. The problem is that prosecutors are not like lawyers in private practice. The rules of professional conduct impose on them different duties, particularly a duty to act in the best interest of justice. This means that the prosecutor has to make sure that justice is served, not just that people are convicted to keep the numbers up.

Everyone knows that most convictions in this country are achieved via plea bargains, but, the bonus system in Colorado encourages prosecutors to pursue trials in lieu of plea bargains to qualify for a bonus. Thus, the bonus system actually could encourage prosecutors to act against their duty as a minister of justice.

Sunday, March 27, 2011

Discipline for lawyer who claimed she could "channel" the client's dead wife's spirit

A few months ago, I reported (here, here and here) on a 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 but the Arizona Disciplinary Commission imposed only a one year suspension on the attorney. The State Bar then asked the Supreme Court to review the case and disbar Johnson. The Legal Profession blog is reporting now that the Court sided with the Commission and imposed only a one year suspension.

The opinion is available here. The report of the Disciplinary Commission is attached here.

Thanks to the Legal Profession blog for the links.

What do you have to do to get disbarred in New Jersey?!

The Legal Profession blog has a short report on a recent case in which the Supreme Court of New Jersey decided not to disbar an attorney even though the attorney had already faced eight ethics complaints in the past, half of which had resulted in suspensions. To make it worse, it appears that the attorney did not even care to respond to the charges in four of those cases. To its credit, the Disciplinary Review Board had recommeded disbarment. I understand the value in providing second chances but after 4 suspensions and a recommendation by the Board to disbar... C'mon!

Friday, March 25, 2011

Follow up on Supreme Court oral argument in Turner v Rogers

In Turner v Rogers, the Supreme Court is considering whether there is a constitutional right to court-appointed counsel in civil contempt proceedings that can result in incarceration. The ScotUS blog has all the relevant documents and briefs. The transcript of the oral argument is available here.

Amanda Rice of the ScotUS blog reports that after the oral argument, Jesse Holland of the Associated Press reported that “the Court sounded reluctant to extend the right to a taxpayer-provided lawyer . . . to civil proceedings where a person faces jail time.” Similarly, Adam Liptak of the New York Times described the Justices as “appear[ing] frustrated” during the argument, as “[i]t seemed that there were procedural and practical problems with almost every potential ruling.”

Prof. Renee Newman Knake, of the Legal Ethics Forum, adds that Adam Liptak summarizes the argument in Justices Grapple With Issue of Right to Lawyers in Child Support Cases. The ABA filed an amicus brief saying yes, "that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time." Professors Ben Barton and Darryl Brown filed an amicus brief arguing no, that pro se reforms are the better alternative for ensuring justice in these types of cases.

For more comments on the case, go here and here.

Tuesday, March 22, 2011

Supreme Court to hear argument in case on right to attorney in civil contempt proceeding

Tomorrow the Supreme Court will hear oral arguments in Turner v. Rogers (formerly titled Turner v. Price) which asks whether an indigent client has a right to an attorney for civil contempt proceeding that could lead to jail time. Stay tuned for updates on the transcript and more.

Monday, March 21, 2011

Supreme Court reverses finding that prosecutor selected jury improperly

In a very short Per curiam opinion (available here), the United States Supreme Court has issued reversed the United States Court of Appeals for the Ninth Circuit's finding that a trial prosecutor had struck two members of the jury venire for race-based reasons. The defendant's motion for relief based on the prosecutor's conduct had been denied by the trial court and affirmed by the California Court of Appeal. After that court affirmed, the defendant sought habeas relief in federal court, but the District Court denied the motion. The Court of Appeals for the Ninth Circuit then reversed finding that "[t]he prosecutor’s proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African-American jurors were stricken, and the record reflected different treatment of comparably situated jurors."

The US Supreme Court, however, found this conclusion to be "as inexplicable as it is unexplained" and reversed. The case is Felkner v. Jackson and it is available here.

Thanks to the Legal Profession blog for the update.

Supreme Court grants cert in yet another prosecutorial misconduct case

The Supreme Court just announced it has granted review in a case called Rehberg v. Paulk which asks "whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages." The lower court's opinion is available here. As usual, the Supreme Court blog has all the information and links here, including the Petition for certiorari, and all the briefs and replies. Make sure you keep that link handy, since they keep updating it with documents as they are filed.

I have not had a chance to read the opinion or the petition for cert so I do not know the details but I have been speculating for a while that after all the prosecutorial misconduct scandals in 2009 (go here and scroll down for all my posts on prosecutorial misconduct), the Court has been looking for opportunities to express itself on the subject. It first granted review in the Pottawatomie case which eventually settled, and then Connick v Thompson, for which it heard oral arguments in the fall.

Rehberg is, therefore, the third case related to the issue of prosecutorial misconduct in two terms. For previous posts on Pottawatomie go here, here and here. For previous posts on Connick v Thompson, including links to the oral arguments, go here, here, here, here and here.

Thursday, March 17, 2011

Does using the plural "offices" when you only have one location violate the rules?

We have seen a number of cases where courts have found the use of "associates" in a firm's name deceptive if there is only one associate or if the attorney does not have any associates at all. A couple of days ago, I noticed a couple of attorneys refer to their firms as "The Law Offices of ....(so and so)..." I wonder if the word "offices" suggests there are multiple locations. Assuming there is only one, does the title of the firm violate the rules?

Ct finds communication among attorneys regarding possible malpractice claim by client is privileged

According to a story on the Ethical Quandary blog, the U.S. District Court for the Southern District of Ohio has rendered an important decision in the area of law firm risk management and attorney-client privilege. The court held that when lawyers within a firm communicate internally regarding the firm’s potential malpractice in an existing client’s matter, those communications are protected from later discovery by the client under the attorney-client privilege unless the client can establish good cause for discovery. The case is called Tattletale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP. For more on the story and a full summary of the case, go here.

DC Ct of Appeals reverses conviction because of prosecutorial misconduct but splits on whether prosecutors should be investigated

The blof of the Legal Times is reporting (here) that, in a 2 to 1 opinion, the District of Columbia Court of Appeals, has reversed a conviction after finding that federal prosecutors failed to timely turn over exculpatory information to the lawyers representing a man in a shooting case. However, the judges who voted for the majority split over whether the trial judge, Craig Iscoe, should inquire whether prosecutors in the U.S. Attorney’s Office for the District of Columbia committed an ethics violation by failing to provide the defendant's lawyers with information beneficial to his case. The case is called Tyree Beysean Miller v. US and the 75-page opinion is available here.

I haven't had time to read the long opinion myself, so I am relying on the news item, but it is hard to understand how you can find that there is prosecutorial misconduct and then not say that it should be investigated whether the misconduct is a violation of the professional rules. If this is an accurate description of what happened here, it is another example of a missed opportunity for a court to take prosecutorial misconduct seriously. For comments on this issue go here and here. For all the recent stories of prosecutorial misconduct - and, unfortunately, there are many, go here.

Wednesday, March 16, 2011

Podcast on social media

Here is a link to a radio show on the Legal Talk Network on how to (and how not to) use social media as a marketing tool.

Tuesday, March 15, 2011

North Carolina considers whether to allow non-lawyers to buy interests in law firms

According to a comment by popular New York blogger (and personal injury attorney) Eric Turkewitz, there is a bill pending in North Carolina that would allow non-lawyers to buy up to 49% interests in law firms which he argues "violates the age old prohibition on sharing legal fees with non-lawyers, and is one hell of a lousy idea." He makes a pretty convincing argument in his post which you can read in full by going here.

Friday, March 11, 2011

Should All Lawyer Scoldings Be Public?

Here is a link to a story in the Wall Street Journal law blog that asks whether all lawyer scoldings should be public. It says, in part:

"One most effective ways to deter bad behavior is to publicly expose those who are caught.
Yet, in most states, lawyers frequently are disciplined behind closed doors, through private admonitions or sanctions, rather than through formal, public censures or fines.


. . . . But Rodd Santomauro, the new executive director of HALT, a legal consumer advocacy group based in Washington, D.C., says . . . that “There should not be any private reprimands whatsoever when it comes to disciplining attorneys,” . . ."

The King of Torts is in trouble

Here is a report from about 2 weeks ago in The Wall Street Journal Law Blog on the saga of attorney Stanley Chesley, a very successful plaintiffs' lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career - many of them huge mass dissaster/multi-district litigation type cases.

I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case. I remember him as a nice guy. He was more involved in the negotiating part of the case, rather than the day to day preparation and discovery work - what I was working on mostly. I like to say that he was one of those guys who is into "practicing facts" rather than "practicing law", but that is another story.

In any case, here is what bothers me the most about this: here is a guy who has done a lot of good work over a long, successful career. He has helped many people. He also made lots and lots of money. At this point in his life, he does not need any more money, or fame or anything. Now his career and his reputation are in jeopardy. Say it ain't so, Stan!

As reported in the WSJ, Chesley’s attorneys said they planned to appeal to the Kentucky Supreme Court, which will make a final determination on the commissioner’s recommendation. The attorneys cited a federal probe of the case, which didn’t result in charges against Chesley. “His findings are directly contrary to the findings of federal authorities, who fully investigated this case and never considered Mr. Chesley a target of their investigation,” they said in a statement.

For more on the story go to the Abnormal Use blog.

Should experts in legal malpractice cases be limited to practicing lawyers? -- UPDATED

The Legal Malpractice law review blog is reporting on a recent case from Georgia that holds that expert witnesses in a legal malpractice case must be practicing lawyers. The court apparently ruled the expert in question was not qualified because he did not (1) represent entities or individuals in court; (2) draft or file pleadings in judicial proceedings; or (3) prepare the type of documents or perform the legal tasks at issue in the litigation. Here is the link to the story. The case is called Wilson v. McNeely.

The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice.

When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis.

Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary.

I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.

Saturday, March 5, 2011

How not to practice law: charge money for nothing

My students will get a kick out of this story, published yesterday in the Legal Profession Blog, which deals with the topic we discussed in class this week.

Here is a quick reminder of a pretty easy to understand principle: you can't charge a fee and then not provide the services the fee was supposed to pay for. Duh!

This basic principle is illustrated in a decision of the Maryland Court of Appeals. The attorney was disbarred for doing just that. He collected fees in two cases, pocketed them and then did not perform the services. Note that in this scenario, there is yet another violation of the rules: since the fees were paid to perform future services the attorney was supposed to place them in the client trust account. Instead he pocketed the money (and used it for his own personal purposes).

Now here is the kicker. How much money do you think was worth getting disbarred for? The total amount: $1,100.

Maybe I should assign this case to my students because it actually illustrates two other principles I tell them about emphatically in class: (1) it does not matter what the conduct is, because of the lack of guidelines when it comes to sanction, you always risk disbarment. Is it really worth risking it for $1,000? And, (2) having said that, if there is one thing you can be 99% sure of in terms of sanctions it is that if you steal money from a client, it does not matter how much, you will likely get disbarred. And you should; period; end of story.

Friday, March 4, 2011

Did She-Hulk violate the rules against solicitation of clients?

Law and the Multiverse is a blog that addresses legal issues in the alternate world of superheroes and villains. Aside from the superheroes' common connection with law enforcement and other aspects of the law, it turns out that some of them are actually lawyers in their alter-ego lives. I am not a comic books kind of guy, but if I remember correctly Dare-Devil is a lawyer and, as I just learned, so is "She Hulk." (Actually, I have to admit I had never heard of "She Hulk" to begin with, but that is neither here nor there....).

In any case, here is a link to a recent discussion on whether "She Hulk" violated the rules against solicitation of clients when, after saving a victim from an attack by some villains, she offered to represent the victim in a case against other superheroes who did not help her.

PS: I will admit to having watched a few episodes of Birdman, Attorney at Law, which is a pretty crazy show.

Thursday, March 3, 2011

Prosecution for jury nullification

When discussing the limits of proper argument by lawyers in front of a jury I ask my students whether a lawyer should be disciplined for asking the jury to disregard the law. The approach to the discussion may change this year given a story published by the New York Times this week. In it, the NYT reports that prosecutors in New York have taken the unusual step of having a jury nullification advocate indicted on a charge that distributing of pamphlets informing jurors of their right to disregard the law at the courthouse entrance violates a law against jury tampering.

Go here for the story in the New York Times and here for the story in the Wall Street Journal law blog.

Wednesday, March 2, 2011

Billing methods

Yesterday I discussed different billing methods with my students. We spent most of our time talking about contingency fees, but we also mentioned hourly fees and flat fees. We were all familiar with these methods. I have to confess, though, that, until today, I had never heard of anyone billing "by the inch," ... meaning by how thick the file is. Here is a story about an expert witness who claimed he charged $150 per inch of paper....

Proposed bill to enforce ethics rules at the Supreme Court

In the wake of a spirited debate about Justices Scalia and Thomas' decisions to appear before conservative groups and legislators, which included a letter signed by more than 100 law professors (see here), two Democratic lawmakers have proposed a bill that would require a process for taking in ethics complaints about the justices of the Supreme Court, and for investigating those complaints. It would require justices to explain their decisions to recuse or not recuse from a case, and if a justice has turned down a motion to disqualify, it would allow the rest of the Court to disqualify the justice. For more on the story go here.

More on the finding that Feinberg is not neutral in BP oil spill case

About a month ago, I reported that a federal judge ruled that it was misleading for Ken Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. See here. As a result, the website for the Gulf Coast Claims Facility now states the Feinberg is acting "for and on behalf of BP."

According to an updated in the Legal Ethics Forum, the website now states "The Gulf Coast Claims Facility ("GCCF") is the official way for Individuals and Businesses to file claims for costs and damages incurred as a result of the oil discharges due to the Deepwater Horizon Incident on April 20, 2010 ("the Spill"). The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), who is responsible for all decisions relating to the administration and processing of claims submitted to the GCCF. Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration Production Inc. in fulfilling BP's statutory obligations as a responsible party under the Oil Pollution Act of 1990."

How not to practice law: try to help your client by breaking the law

I usually make fun of the lawyer's whose stories end up in my running list of "how not to practice law." This is not one of those stories. This is a sad story of a lawyer who meant well but really did not think it through when deciding how to try to help his client. Here is the story, via Don Lundberg and Mike Frisch of the Legal Profession blog:

The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant and devised a plan to destroy the informant's credibility by showing that he was still dealing drugs. The attorney arranged for two juveniles to purchase marijuana from the informant and assured them that the conduct was legal. The attorney sought the $200 from the client's mother, telling her that it was a litigation cost, and gave the money to the juveniles to fund the purchase.

The juveniles bought the drugs and the attorney recorded the transaction. However, the juveniles only used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney then told the juveniles to hold on to the evidence but they smoked it instead. Then the attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. Instead, the attorney was arrested and charged. He was convicted and the Indiana Court of Appeals affirmed.

The court concluded that the attorney did not stand on "the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy." The court concluded that "the legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense his client...This is not a close case."