Friday, April 29, 2011

How not to practice law: don't pay your student loans

The Legal Profession blog is reporting on a recent decision by an Illinois Hearing Board recommendeding a suspension of six months of a 1994 University of Chicago law grad for bad faith failure to repay student loans. Go here for more information. Go here for the opinion itself.

Thursday, April 28, 2011

Prosecutorial Misconduct

Long time readers of this blog might remember that I often referred to 2010 as the year of prosecutorial misconduct. There were so many scandals it seemed that the topic was in the news constantly. As 2009 ended, the US Supreme Court heard oral arguments in what seemed to be a pretty important prosecutorial misconduct case (Pottawattamie County, Iowa v. Harrington), but then it settled.

Almost as soon as it settled, though, the Court granted review in another misconduct case (Connick v Thompson). I immediately speculated that the Court was just looking for a case to comment on the issue and to criticize what seemed to be widespread prosecutorial misconduct.

It is now pretty clear I was wrong. The Court decided Connick without making any comments about prosecutorial misconduct in general. For the majority, the facts of the case were an isolated - one time - incident.

There may be other opportunities for the Court to express itself on this growing issue, but I am not going to hold my breath.

Here is a link to a recent article by Erwin Chemerinsky, Dean of the UC Irvine School of Law, called "Head in the sand over prosecutorial misconduct" in which he criticizes the Court for failing to express itself about the problem and concludes:

These two cases [Van de Kamp v. Goldstein,decided in 2009 and Connick v. Thompson, decided this year)],share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system.


For a lot more information, links and comments on Connick, Pottawatamie and other prosecutorial misconduct issues go to my section on Prosecutors here.

Tuesday, April 26, 2011

Ethics 20/20 commission on outsourcing and confidentiality of metadata

According to information in the ABA/BNA Lawyers' Manual on Professional Conduct, at its eighth meeting, held April 15-16 in Washington, D.C., the ABA Commission on Ethics 20/20 agreed on the substance of tentative recommendations that it expects to make to the ABA House of Delegates next year for modernizing ethics standards on the outsourcing of services and confidentiality issues arising from modern technology.

As to the outsourcing of legal services, the commissioners agreed that the rules should instruct lawyers to obtain informed client consent in most instances before they allow other lawyers to work on a client's matter.

Interestingly, this is already the law in Illinois where Rule 1.2(e) states that "after accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer not in the lawyer's firm the responsibility for performing or completing that employment, without the client's informed consent."

As for the issues regarding technology, the commission endorsed the idea of adding a black-letter rule recognizing that lawyers have an affirmative obligation to safeguard client information no matter what forms of technology they use to generate, transmit, and store data.

Although there is nothing wrong with this proposal, I am not sure it adds anything to the well established duty of confidentiality, other than to say to lawyers that they have to be careful not to disclose confidential information by accident -- something we knew already.

In addition, the commissioners have decided to suggest that the presence of metadata in a document tranferred electronically does not, by itself, suggest an inadvertent disclosure. Thus, the commissioners largely agreed that the presence of metadata should not in itself trigger a duty to notify the sender.

I am not sure I agree with this. I could be wrong but I think that when a document has metadata it is more than likely the result of inadvertence.

UPDATE (5/7/11):  The Legal Ethics Forum has links to the documents and comments on them here.

Wednesday, April 20, 2011

How not to practice (bankruptcy) law

William Freivogel, whose excellent website on conflicts is available here, sent me a copy of a recent case we can add to our on-going list of "how not to practice law" series. In this case, called In re: Moon Thai & Japanese, Inc the court reviewed several bankruptcy cases a law firm filed on behalf of clients and found, among other things, that the firm had agreed to represent more clients than it could handle, that the firm's attorneys showed a lack of understanding about conflicts of interest, that the firm used questionable practices in handling retainers, that the firm appeared to be using the services of an attorney who had been suspended by the court and that the attorneys appeared to have misrepresented facts during a hearing.

Based on these findings, the court required both partners in the firm and an associate to complete 60 hours of continuing legal education in bankruptcy law and prohibited them from representing new clients until they obtained permission from the court to do so.

To give you some perspective on the CLE assignment... My Professional Responsibility class is a 3 credit class which means that over a 14 week semester it meets 42 hours total. My Torts class is a 4 credit class, which meets a total of 56 hours a semester. Sixty hours of CLE in one topic should take these guys a long time to complete.

Sunday, April 17, 2011

How not to practice law: offer to help law students cheat

Here is a story on the ABA Journal on a Massachusetts lawyer who was suspended for six months for placing advertisements on Craigslist to write students’ term papers and essays. That sanction is too lenient in my humble opinion. He knowingly offered to help law students cheat, which shows he does not care about rules, integrity or ethics. Is that the kind of character you want representing clients out there? Go here for more on the story.


Thanks to Christi Brock for the link.

Saturday, April 16, 2011

Budget cuts and legal services

Here are the links to two related stories on funding for legal services.

The Blog of the Legal Times is reporting that the bipartisan deal on the federal budget includes a $15.8 million midyear cut for the Legal Services Corp., which is the nation's largest funding source for civil legal aid to the poor. This is not good news, but the cut is actually smaller than the $70 million originally proposed by the House Republicans. Go here for the full story.

In a related story, the Wall Street Journal law blog discusses budget cuts for public defenders' offices across the country. Go here for that story.

Sunday, April 10, 2011

Michigan Court orders new trial because of ineffective assistance of counsel; Counsel apparently "threw" the case

The Chicago Tribune and Prof. Jonathan Turley are reporting that the Michigan Court of Appeals has found a defense attorney rendered ineffective assistance of counsel after the prosecutor herself raised concerns. The prosecutor claimed that defense counsel told her that defense counsel "held back on her defense" because she thought the defendant was actually guilty. Defense counsel did not deliver an opening statement and did not present a single piece of evidence. She also declined to cross examine the victim and other key witnesses and did not object the prosecutor's use of hearsay evidence. The court concluded that "counsel failed to subject the prosecution’s case to any meaningful adversarial testing." Go here and here for the full story.

If true, the conduct of the defense attorney was shameful. On the other hand, after so many stories of prosecutorial misconduct in the past couple of years, it is refreshing to hear about a prosecutor who takes seriously her duty to make sure that justice is done, not just that convictions are obtained.

The case is People v. Gioglio and it is available here.

Saturday, April 9, 2011

John Thompson, the plaintiff in Connick v Thompson, writes about his case in the New York Times

Here is a link to a short article by John Thompson, the plaintiff in Connick v. Thompson, published today in the New York Times. The article starts like this "I spent 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished." Towards the end, Thompson adds "I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued."

These are all valid questions, although it should be clarified that the prosecutor who withheld the evidence died and the one to whom he confessed but did not disclose was disciplined. Harry Connick, Sr., the original defendant, in charge of the prosecutors' office, retired I believe. To my knowledge, though, no one else has been disciplined.

Thursday, April 7, 2011

Washington Post editorial on Connick v Thompson

The Washington Post has published a short editorial criticizing Connick v. Thompson that starts like this: "A court decision may be legally correct but ultimately fall far short of justice. That is the case with the decision rendered last week by the Supreme Court in Connick v. Thompson." To continue reading go here.

Tuesday, April 5, 2011

Short Comment on Connick v Thompson

Here is a link to another short comment on Connick v Thompson.

Congress discusses the future of legal aid

Rep. Frank Wolf (R-Va.), chairman of a House appropriations subcommittee said today the largest source of funding for legal aid, the Legal Services Corp., still faces proposed cuts from the House’s new Republican majority. LSC and its local partners should turn to resources from large law firms, state bar dues and law schools, he said and added that private-sector lawyers aren't doing enough to help the nation's poor with legal problems. He warned that they might need to make up for expected cuts in federal funding. Go here for the full story.

Supreme Court stops two executions due to lawyers' conduct

The Supreme Court has sayed two executions scheduled for later this week in Arizona and Texas. By doing this, the Court has put itself in a position to take on an issue that has lingered unresolved for two decades: whether there is a constitutonal right to a lawyer performing effectively in a new challenge started after a conviction has become final. For more on this go here.

Monday, April 4, 2011

Saturday, April 2, 2011

Podcast on e-discovery and Facebook

In the April edition of Law Technology Now, host Monica Bay interviews Craig Ball, author of the Law Technology News’ column, “Ball in Your Court”. They discuss recent e-discovery cases and developments, including Facebook’s decision to create a “one-button” tool to collect user data on its social media site. To listen to the podcast go here, here or here.

ABA Commission releases paper on multi-jurisdictional practice

The Legal Ethics Forum is reporting that the ABA’s Ethics 20/20 Commission has released an issues paper (here) relating to multijurisdictional practice. It identifies possible mechanisms for liberalizing cross-border practice and asks for feedback on whether such changes would be desirable.

Another comment on Connick v Thompson

Lisa McElroy of the SCOTUS blog writes:

"Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines: Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision. Indeed, the facts of Connick are pretty upsetting and powerful: Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable. He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed. The catch? Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case. Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.

So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick. Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors. But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers. Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions."

Supreme Court decides Connick v. Thompson on the possible liability of a DA's office

Last Tuesday the US Supreme Court announced its decision in the highly awaited case Connick v. Thompson. For my previous posts on the case, including links to the oral argument go here, here and here.

In a five-four opinion by Justice Thomas that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference.

In this case, the defendant conceded that the prosecutor in a case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before the truth came to light.

In a dissent joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg stated that "The evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983."

As usual, the opinion has generated much attention in the media. Here are some of the links I have seen, most of which are courtesy of the SCOTUS blog:

The legal ethics forum has some comments here.

Bob Barnes of the Washington Post reports that Connick is “the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.” Barnes adds that the decision “marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.” The New York Times, USA Today, Constitutional Law Prof Blog, the Los Angeles Times, CNN, JURIST, Crime & Consequences, Courthouse News Service, and ABA Journal have additional coverage.

Friday, April 1, 2011

How not to practice law: claim that everything is confidential

The ABA Law Journal is reporting today that a federal appeals court has imposed a $1,000 fine on an attorney from the law firm Katten Muchin Rosenman for "extensive use of improper confidentiality markings." Go here for the story.