Thursday, July 25, 2013

How not to practice law: ask client to pay for legal services with sex

Here is the most recent addition to our running list of examples of how NOT to practice law. This is one we have seen before and it should be pretty obvious... but it continues to happen. Go here for the full story.

Sunday, July 21, 2013

Connecticut Law Tribune editorial on prosecutorial misconduct

I often complain that courts do not take prosecutorial misconduct seriously enough.  To its credit, The Connecticut Law Tribune does.  It recently published an editorial, criticizing all the arms of the criminal justice system for their complicity in repeated instances of prosecutorial misconduct during closing arguments by Connecticut prosecutors.

Thanks to "a public defender blog" for the link. Go here for their comments on the article.

Criticism of District Attorney following Zimmerman trial

Jonathan Turley has posted his opinion on the conduct of the District Attorney in charge of the Zimmerman prosecution.  He states that the DA's office "stands accused of serious allegations of withholding evidence from the defense. I have previously said that I view those allegations as highly credible and worthy of sanctions. She is also facing a whistleblower lawsuit after she fired an IT specialist who revealed that her office was withholding evidence in the Zimmerman case" and concludes that "[a]t a minimum, [the DA's] actions and comments strike me as highly unprofessional." Read the article here.

Wednesday, July 17, 2013

More on the Zimmerman case

Again, as expected there are more comments on the Zimmerman verdict.  Here are links to some I saw today (with brief quotes to give you an idea of the content of each).  Click on the links to read the full articles:

Zimmerman prosecutors further beclown themselves (Legal Ethics Forum)
("the prosecutors who showed such bad judgment in the Zimmerman matter do it again, just in case you had any doubts. When you bring the wrong charge, try the wrong case, and decisively lose the case, you shouldn't mug for the camera, cya, talk about how well you would have done if the trial had been completely different, mock the acquitted accused for a supposed lack of courage, disparage the defendant for exercising his constitutional rights, etc.")

Angela Corey Fires Whistleblower Who Revealed The Withholding Of Evidence From Zimmerman Defense
("the prosecution team of Angela Corey in the Zimmerman case have been accused of repeated prosecutorial abuse in the withholding of evidence from the defense. ...Corey has been widely criticized for over-charging the case ... and her team was widely criticized for putting on a weak case for prosecution. Now, before [a ruling] on her office’s withholding of evidence, Corey has fired [the person who disclosed it]. His termination before a ruling on the alleged prosecutorial abuse only strengthens his claims as a whistleblower and throws the ethics of Corey and her office in great question.")

Law and Legend: How The Zimmerman Case Was Lost By The Prosecution (Jonathan Turley)
("Criminal cases often make for easy and dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters — discarding those facts that do not fit our narrative. Zimmerman and Martin became proxies in our unresolved national debate over race.")

Can a lawyer advice a client to "clean up" a Facebook page?

There are a lot of stories out there about lawyers looking for evidence in clients' and opponents' Facebook pages, so it is interesting that I saw two stories this week on whether a lawyer can advice a client to delete material from the client's social media sites. One says it is ok, the other one argues it would not be.  At first sight, it appears the stories contradict each other, but maybe they don't.

First, according to an opinion by the New York County bar's ethics committee (New York County Lawyers Ass'n Comm. on Professional Ethics, Op. 745, 7/2/13),attorneys may in some circumstances advise a client to “take down” social media and online postings that could have an adverse effect on the client's position in a civil matter:  "An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages…. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed."

The key to this opinion is, of course, "provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence".  In other words, what the opinion apparently says is that if it is OK to do it under the law, it is ethical to advice the client to do it.  Nothing new there.

The question then is, is it OK to do it under the law?  Not according to this story in the Professional Liability Matters blog which concludes that "[o]ne rule that is well established is the requirement that a legal hold be implemented for all relevant materials, including social media content. The failure to abide by this rule could be dire."  (There is a follow up story in the PLM blog here.)

Sunday, July 14, 2013

More comments on the Zimmerman verdict

Yesterday I wrote that we would see many comments on the Zimmerman verdict in the next few days.  Here are links to some I saw today:

USA Today column by Jonathan Turley

An imaginary dialogue trying to explain Florida v. Zimmerman to someone who has not had the benefit of a legal education by Stephen Gillers

George Conk at Otherwise

Jury nullification argued by prosecution in Zimmerman case (Legal Ethics Forum)

Day on Torts

Georgia Supreme Court agrees with recent ruling re intra-firm privilege

A few days ago I reported that a new decision from Massachusets recently held that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  Now comes news that the Georgia Supreme Court has issued an opinion reaching the same conclusion.  The Legal Ethics Forum has the story and links here.

Saturday, July 13, 2013

Comments on Zimmerman Verdict

I am sure we will see lots of comments on the Zimmerman case in the next few days.  Here is a link to a short comment (with lots of links to more articles, comments and information) at the Legal Ethics Forum.  The main issue it raises is that "[t]he chief prosecutor in the court room was hamstrung by the murder two charge, which required him to stretch facts, pre-emptively put on witnesses who undermined the state's own case, and to spend most of his case trying to create a reasonable doubt about the defense's theory. One wonders what would have happened if the state had simply gone with manslaughter and presented their case with confidence and integrity."

Wednesday, July 10, 2013

More on the story on perjury by medical expert in personal injury cases in New York

I recently posted a story about a developing story about perjury in New York.  The story continues...    Go here for the latest.

Massachusets Supreme Court recognizes in intra law firm privilege

The Legal Profession blog is reporting (here) on an important new decision from Massachusets on whether confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  The court concluded that they are, provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.  The case is called RFF Family Partnership, LP v. Burns & Levinson LLP.  The Legal Profession blog has more on the story and a link to the case here.  The Legal Ethics Blog also has more here

E mail problems seem to have been solved

It seems that the e mail update service is functioning properly again. If you signed up yesterday (Tuesday, 7/10) you should have received an update by email already. If you did, you are all set and you should continue to get the updates regularly. If you didn't get an update this morning, please check to see if you missed the confirmation e mail that went out to you when you entered your email address. You need to follow the instructions in it to complete the process. If all else fails, please go to the blog and try signing up again, wait for the email and hit the link in it. Everything should be up and running without problems now.
As usual, you will only get one message in the morning with the posts posted the previous day. If you notice that you have not received updates in more than a week, please go to the blog itself and check if there are new posts you have missed. If so, please let me know there is a problem.
Thanks again for your patience and your support for the blog.

E-mail problems part II

Thank you to all the readers who have signed up again for e-mail updates. Unfortunately, I did not get an update this morning either so I am still trying to figure out what the problem is. Thank you very much for your patience!

New Jersey Supreme Court fails again

I have complained in the past about New Jersey's repeated failures to properly sanction unethical conduct.  See here and here, for example.  Today's example adds to the state's reputation for lax standards.  In this case, the attorney was disbarred in New York in 2011 for commingling and record keeping violations that were deemed not small nor isolated.  The attorney was  later was also disbarred in Colorado, Pennsylvania and in Connecticut.  But when it came to New Jersey, the New Jersey Supreme Court ordered a three-month suspension.  The Legal Profession blog has more here.

Sanctions for lawyers of witness who perjures himself?

Eric Turkewitz continues his coverage of a developing story in New York, where a judge recently found a physician who has made a career testifying for defendants in personal injury cases in New York has been found to have committed perjury.  Go here for the first installment on the story. Go here for the latest.  Should the lawyers who brought the witness to testify be sanctioned?   The judge initially imposed sanctions but then eliminated them. 

The case also involves an attorney surreptitiously obtaining evidence to expose the perjury.  Should that evidence have been turned over as part of discovery?

Tuesday, July 9, 2013

Problems with e-mail subscriptions

Something happened to the blog yesterday and the e-mail subscriptions function stopped working. I fixed the problem, but unfortunately, if you had an e-mail subscription and prefer to continue to get updates by e-mail, you will need to subscribe again. Please do so by entering your e-mail address in the box on the right hand side panel.  You will have to then follow the prompts to complete the process (typing some random letters and replying to a confirmation email).  It is a three step process but should not take you more than a minute to complete.  I just went through it myself.

I apologize for the inconvenience! If you have any questions or concerns please email me directly.

Monday, July 8, 2013

Witness commits perjury, then blames the judge because judge had told him he had to tell the truth...

Eric Turkewitz continues his coverage of a developing story in New York, where a judge recently found a physician who has made a career testifying for defendants in personal injury cases in New York has been found to have committed perjury.  Go here for the full story.

Book review and discussion of lawyers' roles

JOTWELL has a good book review of W. Bradley Wendel's Lawyers and Fidelity to Law (Princeton University Press, 2010).  I have not read the book, but enjoyed the short review which summarizes the philosophical debate about the justification of the duties of lawyers toward their clients.  As the review explains, "several moral philosophers, and a few lawyers, characterized legal representation as comprising two overarching principles.  The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfill their client’s wishes to the limits of the law. Provided they fulfill these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. . . . Despite some spirited justifications, and more nuanced rejoinders, the balance of debate moved on to the consequences of such a conclusion and the steps that should follow."  

Wendel's book revises the issue of the standard conception of the lawyer’s role.  According to the review, his position is that the message that lawyers are slaves to clients’ wishes is not one that anyone concerned with the integrity of professional values wants to convey, while admitting that the profession's underlying rationale has to be the autonomy of clients.  To reconcile the conflicting views, Wendel argues the proposition that it is not fidelity to clients that is the underlying justification of the lawyer’s role, but fidelity to law itself.

Go here to read the full review.

Saturday, July 6, 2013

Court affirms disqualification of Covington & Burling

Last year I posted a few comments about a case in which 3M Corporation sued the law firm Covington and Burling arguing that the law firm violated its duties to the client by operating under a conflict of interest.  See my initial post on the case here.  The lawsuit alleged that the firm had decided to represent the State of Minnesota against 3M in a case that was substantially related to the representation of 3M in another case.  3M also filed to disqualify the firm from representing the state in that case.  I commented on the allegations here and here.  Eventually, the court granted the motion to disqualify and the firm and the state appealed.  That appeal was decided last week when the Court of Appeals affirmed.  You can read the opinion here.  (Thanks to the Legal Ethics Forum for the link).  You can read a comment on the case here.

Friday, July 5, 2013

What to do if attorney discovers child pornography in a computer that belongs to a member of a corporate client

Prof. Monroe Freedman has posted this interesting question at the Legal Ethics Forum:  A lawyer who represents both civil and criminal clients is at the offices of a corporate client he is representing in a civil matter.  While he is there, the lawyer gets permission from a VP of the company to use the VP’s computer  (which belongs to the corporate client) to check the lawyer’s email.  In using the computer, the lawyer inadvertently discovers that it contains pornographic pictures of sexual abuse of children.  The VP is not the lawyer’s client, and the VP has no reason to believe that he is.  The pornography is unrelated to the client’s business.  What should the lawyer do?  Go here for the discussion.

Unbundling legal services: not as easy as it sounds

Last February, I reported that the ABA approved a resolution encouraging lawyers to consider providing unbundled legal services when appropriate.  See here.  According to a report accompanying the resolution, such representation can increase access to legal services. 

I have expressed my doubts about the concept of unbundling of legal services and I am not sure what all the brouhaha is about (see here).  Likewise, here is a comment on why unbundling is not as easy as it sounds.

Canada Supreme Court clarifies rules re conflicts of interests

Some time ago, there was a debate as to whether the ABA Model Rules should be amended to allow for screening in cases of concurrent conflicts of interests if the interests of the clients involved were not related.  That view was (correctly, in my opinion) rejected and the debate has since died down.  The rule, thus, remains that a lawyer may not act for clients with directly adverse legal interests, even in matters that are unrelated. Interestingly, the Canadian Supreme Court recently clarified its position on this subject, making it clear it agrees with the ABA Model Rules approach.  Go here for more on the story.

Thursday, July 4, 2013

How not to encourage ethical conduct: Oklahoma Supreme Court holds that the proper sanction for misconduct is what it would have been back when the conduct ocurred

If you follow this blog you know that I have often commented on how courts do not seem to do enough to punish unethical conduct by prosecutors. (Most recently, here.)  With that in mind, I find the reports on a recent decision by the Oklahoma Supreme Court very troubling.

As reported by Prof. Jonathan Turley the court rejected a request from the state bar association to disbar a former assistant district attorney for Oklahoma County for egregious misconduct in two capital cases. Here is a key passage that summarizes the court's conclusion:
Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension. Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though  [it] may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, [the prosecutor's] actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all. 
This is, in short, absurd.  Anyone who knows anything about professional responsibility knows that there has always been a problem with sanctions being inconsistent among and within jurisdictions, particularly when it comes to prosecutors.  Also, anyone paying attention knows prosecutorial misconduct is a huge problem in this country.

The question should never be whether the sanction to be imposed is what would have been imposed back when the conduct was committed.  The question is whether the conduct was unethical.  Period.  It was.  In fact, the court admits it was reprehensible.  To hold as it does provides an excuse for reprehensible conduct - as long as others were engaged in like conduct at the time or as long as the actor can hide it long enough to say it happened back when a lot of people were engaged in it.  Using this logic, today's unethical prosecutors could avoid harsh sanctions in the future since prosecutors today are also not getting the sanctions they deserve.

Once again, I sound like a broken record:  why do we have so much prosecutorial misconduct?  Because courts are unwilling to take it seriously and do something meaningful about it.

Fortunately, not every member of the Oklahoma Supreme Court was willing to go along with the majority's absurd view. Justices Taylor and Watt dissented, stating:
Whether it was “decades ago” or today, no attorney should ever commit the “reprehensible” conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.
 You can read Prof. Turley's criticism of the court's opinion here.

For my previous posts on prosecutorial misconduct, go here and scroll down.

Advice against public policy

As everyone knows, it would be unethical for an attorney to assist or advise a client to commit a crime or a fraud.  But did you know it may be unethical to assist the client engage in conduct that a court might consider against public policy?  This is the conclusion of a recent case from Indiana in which the Indiana Supreme Court held lawyers could not assist or advise clients in negotiating away parenting time as a means to elimate the obligation to pay child support.  The court found such notion to be "repugnant and contrary to public policy" and held that attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. The case is Perkinson v. Perkinson and it is available here.

Thanks to the Legal Profession blog for the link.

What to do when a witness lies

Every law school professional responsibility textbook has a section on what to do when a client lies.  We all cover that material, but when we do, we usually use cases that involve the duties of a criminal defense lawyer.  Which is why I think this recent post is a must read for everyone interested in the topic.  The author is a prosecutor in New York and his blog is very good. 

Wednesday, July 3, 2013

Update on the Zimmerman prosecution

Jonathan Turley has an update here in which he argues that the "prosecutors in the George Zimmerman trial are facing a collapsing case and renewed question over whether Angela Corey succumbed to the political pressure and overcharged the case. The prosecution’s case has thus far been a disaster and many are now questioning whether charges should have been brought at all, let alone charged as second degree murder"

A new frontier for lawyer advertising: "keyword advertising"

The Florida’s State Bar's “Standing Committee on Advertising,” has recently proposed that it is “deceptive and inherently misleading” for one lawyer to buy keyword advertising triggered on another lawyer’s name.  Go here for the story and for an argument supporting the view that the proposed ban is not a good idea.

Yale Law Journal Symposium on Right to Counsel Fifty Years after Gideon v. Wainwright

The Yale Law Journal's final issue of the academic year is a thorough symposium called: "The Gideon Effect - Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright." It is over 600 pages of articles by 25 leading authors. It is available in print and also for Kindle (Amazon) and Nook (Barnes & Noble) devices.

One of the articles is by a friend on mine, Bruce Green, a professor of legal ethics at Fordham University School of Law.  His article is called Gideon's Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?  Here is the abstract:
In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer — a right that is fundamental to a fair trial and to avoiding wrongful convictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture?

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture? Go here for a discussion on the issue.

Ethical issues raised by the Zimmerman prosecution

Last year I posted a few comments and many links discussing ethical issues raised by the prosecutor's conduct in the Zimmerman case.  (To see those posts, type Zimmerman in the "search this blog" box on the right side panel and you should get links to six different stories). Now that the case in under way, the Legal Ethics Forum has raised one of the issues again.  Go here to see the debate on whether the prosecutor can justify the charge of murder in the second degree.

Brooklyn DA reality vs reality television

A few weeks ago, CBS debuted a new TV reality series called Brooklyn DA (here).  It promised to be a candid look at the men and women who work as prosecutors in Brooklyn.  It did not go well.  As television goes, the show bombed and is reportedly cancelled (or soon to be cancelled).  More interestingly is the contrast between reality TV and the reality.

While the show attempted to portray the DAs office as the good guys doing the right thing all the time, the real drama is unfolding away from the cameras.  As Jonathan Turley reports
The Brooklyn district attorney Charles J. Hynes is not have a particularly good week. First, Hynes had to fire one of his top people after Gang Bureau head Deanna Rodriguez used racist and anti-gay language. Now he will have to testify about allegations that his office ignores and even promotes prosecutorial misconduct. The testimony will occur in the case of Jabbar Collins, who has filed a civil rights lawsuit against the office of District Attorney Charles J. Hynes after he won his release after 16 years in prison for murder. He claims that his case is only one of an array of cases showing a pattern of egregious abuses and misconduct by Hynes’ office and prosecutors. . . . . Among the abuse was the so-called “hotel custody program” where witnesses were detained against their will and allegedly pressured into false statements. A paralegal detailed how prosecutors used the alleged forced interrogations to get witnesses to support their cases.
 The story also appears in the New York Times (here).  Given the controversy, at least one report wonders if "it might be these upcoming depositions of the DA and his shady Rackets Bureau chief that might really be the reason CBS is bailing on a series that it never should have aired in the first place."  For more criticism of the show, go here.