Thursday, January 30, 2014

Court of Appeals for the Seventh Circuit decides question left open by the US Supreme Court in 2010: prosecutor should not be immune to civil claims for misconduct during investigation phase of a case

Back in 2009, the U.S. Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington in which it was asked to decide an important issue related to possible civil liability for prosecutorial misconduct. In that case, two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.  In response to the claim, the prosecutors contended that they had absolute immunity from liability because it has been held that prosecutors have absolute immunity from civil liability for their conduct in the process of prosecuting the case.  The issue in the case, though, was whether the same immunity should apply to the prosecutors' conduct in the process of investigating or "building" a case.

Should their right to immunity (or the level of that immunity) change depending on the role prosecutors play at the time of the alleged violation of civil rights? In Pottawattamie, the prosecutors' misconduct initially took place while they were involved in investigating the crime but it continued during the trial since they presented perjured testimony.  Should the immunity that protects the conduct during trial affect the right to recover for the misconduct that took place before the trial?  If so, couldn't a prosecutor avoid liability for pre-trial misconduct by making sure he introduced the tainted evidence during trial?

These are all important questions that the Supreme Court was ready to address, but it never got to decide the issues because the case settled soon after the oral argument (for $12 million).

Three years later, in an opinion written by the very influential Judge Richard Posner, a split panel of the Court of Appeals for the Seventh Circuit has held that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction.  The case is called Fields v. Wharrie and the opinion is available here.

The case is remarkably similar to the one before the Supreme Court back in 2010.  Here a prosecutor fabricated evidence against a defendant during the investigative stage of the case. He then coerced witnesses to give testimony that the prosecutor (as well as the witnesses) knew to be false.  Based on the false evidence, the defendant was convicted of two murders. The defendant eventually was acquitted in a retrial and subsequently received a certificate of innocence from the court in which he had been tried.

In the opinion, Judge Posner addressed the same issues raised back in 2010.  For example, he explains that "[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a ‘license to lawless conduct,’which the Supreme Court has said that qualified immunity is not to do."

For more information and commentary on this important case go to Seeking Justice, Res Ipsa Loquitur and the ABA Journal.

New Hampshire considers new jury nullification statute

In class we discuss the concept of jury nullification and the issue of whether it would be proper for an attorney to ask the jury to ignore the law when deliberating.  As you know, this is an issue that has been around forever and one about there seems to be a never ending debate.  There are organizations devoted to informing the public about nullification and there is literature warning about its dangers.  Now the topic is back in the news because the state of New Hampshire is considering enacting a law that would require judges to inform the jury of its power to engage in nullification.

As you would expect, not everyone agrees this would be a good idea.  An Op-Ed piece in the Chicago Tribune states, for example, that "[f]or judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so."

Over at Gawker, a short article explains how jury nullification can be double edge sword: "Jury nullification seems like a great idea when you imagine using it to free, say, low-level drug offenders who face long mandatory sentences that are fundamentally unjust. It seems like a terrible idea when you imagine racist southern white juries using it to railroad a black defendant just because they don't like his looks."  And then concludes that "[t]he notion that twelve randomly selected citizens are the most effective backbone of a fair justice system is already a bizarre one; to give them explicit instructions to ignore the law if they so choose seems like a dangerous step towards a legal system in which slick rhetoric, outward appearance, and expensive lawyers are more important than the actual law. Uh... even more so than now. If you're a consequentialist, it might be fair to support jury nullification under the assumption that striking a blow against the War on Drugs will do a great deal of good. But the long term consequences of this policy are impossible to know."

I am still undecided on this one...  I am sympathetic to the argument that says that attorneys should be allowed to argue nullification to the jury, but since nullification can be used for evil purposes as well as for good, I have always been afraid of the dangers of nullification.

For this reason, I think I would allow attorneys to decide if they would want to encourage the jury to engage in nullification (ie, I would not consider it improper for them to urge the jury to ignore the law), but I would not favor a statute that would mandate the judge to do so.  I think the decision on whether to present the option to the jury should be a case by case tactical decision left to the defense counsel.

ABA Journal Poll: Do you think character and fitness standards for the bar are too lenient or too harsh?

In light of the controversy generated by the case of Stephen Glass in California, The ABA Journal is asking its readers to comment on whether they think the character and fitness standards for the bar are too lenient or too harsh.  To post a reply or to read what others have written, go here.  Right now there are only three responses, but my guess is the poll will be open for about a week, so you can go back to read more comments in a few days.

Should lawyers be disciplined for criticism of judges?

Issues related to the freedom of speech of lawyers continue to hit the headlines.  A few days ago, I posted a comment on the on-going debate about whether an attorney should be disciplined for inappropriate and offensive comments about another lawyer.  I have also posted on the question as it relates to the limits on comments about judges (see here).  I am writing about that second question again just to point out that A Public Defender has posted his own comments (here) on whether attorneys should be disciplined for criticizing judges.

How not to practice law (as a judge); and some thoughts on social media

I have not posted a "How not to practice law" story in a while, so here is a short one from today's headlines, as reported by Res Ipsa Loquitur:
Judge Linda D. Schoonover appears to have a different concept of a “friend of the court” party. The Seminole Circuit judge has been removed from a divorce case where she tried to “friend” one of the litigants, Sandra Chace. Chace declined on the advice of counsel to be a friend of Judge Schoonover. Her lawyer says that Schoonover responded with retaliation against her in a type of “scratch a Friend find a Foe” ploy. The judge proceeded to shift most of the marital debt in her divorce to Chace and giving her husband, Robert Loisel Jr., a larger alimony award. Now Schoonover’s colleagues have overturned her order that denied Chace’s motion for disqualification. The panel found that “a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor.” The panel held that “The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case, or risk offending the judge by not accepting the ‘friend’ request.” 
Clearly, the judge should be disqualified.  The court got that part right.  However, the incident raises a couple of other questions in my mind.

First, should the judge be disciplined?  Assuming all the allegations are true, she exercised incredibly bad judgment which, in my opinion, raises a question as to her ability to serve as an impartial judge.  Some people have become so involved in Facebook they seem to forget that they (and Facebook) actually operate in the real world.

Secondly, there is the issue of competence.  The rules of professional conduct in almost every (if not all) jurisdictions now include as part of the measure of competence the duty to understand how to use "technology" and the duty to understand the risks involved in using it.  This, as you may recall, was the result of the debates about metadata a few years ago, but it also relates to the use of social media.

Finally, given that Facebook is causing so many problems, there is the more general question of whether states can do something to regulate or at least provide more guidelines for the proper and improper use of Facebook and other social media by lawyers.  A lot of attention has been devoted to the use of social media as marketing tools for attorney advertising but maybe not enough for the purely social aspects of social media.  Last year, the ABA issued an opinion on the use of social media by judges.  See my post on it here.

Tuesday, January 28, 2014

Not everyone agrees with the California Supreme Court regarding denial of admission to Stephen Glass

Yesterday I posted a comment on the decision by the California Supreme Court to deny admission to Stephen Glass.  (See here.)  Today I found a comment by Prof. Shaun Martin (San Diego) in which he argues the decision is wrong.  He makes a good argument for the position that Glass should have been admitted.  It is worth reading (here).

Among other things, he argues "Is Glass likely to be a sleazy lawyer? No. No way. In large part (if not entirely) because of his prior misdeeds."  And later concludes: "So if the relevant inquiry is (as it largely is) whether we believe that Glass will be a good and proper lawyer, who'll faithfully protect the interests of his clients, I think the answer's pretty clearly "yes"."

As I discussed in my previous post on the case, the key question in these cases is whether evidence of past conduct is a reliable indicator of future conduct.  I know there is some research on this, but it is limited and I am not sure how much we can learn from it.  If there was reliable research that helped answer the question with some degree of certainty then I would be fine relying on that answer.  However, absent that, all we have is the human perception of those passing judgment on the conduct.  They may be right or they may be wrong, but that is what we have.

Admission to the profession by motion?

As reported in the Legal Ethics Forum:
The ABA Journal is running a story this month that is rather critical of states that have no admission by motion rule or have procedures that are more restrictive than those contained in the Model Rule.  
As some readers may recall, the ABA Commission on Ethics 20/20 successfully proposed a modest liberalization of the Model Rule, which now allows lawyers to gain admission by motion after three, rather than five, years of practice.  The Commission also successfully proposed a resolution calling for states that have not adopted the Model Rule to do so and for states that have admission by motion procedures to delete requirements (like reciprocity provisions) that are more restrictive than the Model Rule.
Professor Andrew Perlman, who served in the ABA Commission 20/20, is quoted in the article saying that restrictions beyond those contained in the Model Rule (such as reciprocity provisions) “serve no public policy purpose.  In my view they are indefensible from the standpoint of public and client protection and should be eliminated.”

Should an attorney be disciplined for comments about another lawyer in a blog?

As we all know, the practice of the profession is heavily regulated and part of that regulation includes limits on our freedom of speech.  However, that does not mean that attorneys do not have the right to express their opinions, including their opinions about other lawyers.

As reported in a number of blogs, a law professor from the University of Denver has filed a complaint with the Illinois disciplinary authorities based on the fact that a certain Illinois lawyer has been engaging in what she considers cyber-harassment (or cyber-bullying) by leaving insulting, racist and sexist comments on her blog and other blogs.

I have not seen all the actual comments the professor is complaining about and maybe if I did I would change my mind, but from what I have read about the allegations, I am skeptical that allegations of improper speech should be sufficient to support a disciplinary complaint and, if they are, I am troubled by the implications of such a complaint on the principles of freedom of speech.

There is no question that some of the comments cited in the various blog posts about this story are inappropriate, and many are quite offensive, but others are just exaggerated expressions of opinion meant to make fun of the work of law school professors.  (Some of the comments could very well have been about me and my work.)  Yet, I don't think that the comments, or more accurately, the conduct of posting the comments, should be the basis for disciplinary sanctions.

(If you want to pause now and look at the blog posts in which the professor explains her views and some of the comments to which she is responding, go here, here, here, here and here.  Otherwise, finish my post and come back to them later.)

As law professors, scholars and bloggers we put ourselves and our ideas out there for open criticism.  The fact that some of that criticism is done behind the protection of anonymity, the fact that some of the criticism is offensive, and the fact that sometimes we have no recourse to respond to the criticism should not allow us to ask the state to impose sanctions upon those who have exercised their right to criticize.

The rules of conduct in most states do recognize a duty not to engage in speech that is prejudicial to the administration of justice (a standard that is too vague also), but that standard is not at issue in this case.

The professor's effort to punish the attorney who criticized her threatens free speech and may result in a chilling effect on those who wish to engage in discussions whether in writing, in the classroom, on the internet or anywhere else.  The most basic principle underlying the notion of freedom of speech is that the state cannot punish someone for protected speech merely because someone might find the speech offensive.  That could be the result of the complaint at issue here, and that is why I think the request for sanctions is troubling.  If the state agrees with her, the precedent will diminish the freedom we now have as academics to engage our students in the discussion of controversial and important issues because of the fear that someone might be offended.

The controversy reminds me of Richard Delgado's work on hate speech and the possibility of recognizing a cause of action for damages inflicted by words - other than defamation.  It was an interesting proposal but it was very difficult to reconcile it with the principles of freedom of speech.  Similarly, in his works on hate speech he has argued for what some call a "responsible regulation" of speech.  Again, I understand the concern and I am sympathetic to the idea, but the problem is how to define what is responsible regulation.  And who will define that?  By definition, someone will have to decide what is acceptable speech and what isn't, and if that someone is the state... well, that is what the first amendment is there to prevent.

Neither the Illinois Rules of Professional Conduct nor the ABA Model Rules have a specific section on offensive speech, but both have clarified in the comment to rule 8.4 that manifesting bias by words may be considered misconduct if it is prejudicial to the administration of justice.  However, this is limited to circumstances where an attorney is "in the course of representing a client," as opposed to where the attorney is expressing his or her own biased opinions or world views.

Interestingly, the issue of whether an attorney can be disciplined for offensive speech is not new to Illinois, although in a different context.  If the case moves forward and if it reaches the state Supreme Court, it may give the Court the chance to address the question it did not address in 1999 when it decided not to review the denial of admission to practice to a white supremacist.  In that case, the Committee on Character and Fitness denied admission and the applicant appealed arguing that "the Committee’s use of his expressed views to justify the denial of his admission to the bar violates his constitutional rights to free speech."  The Supreme Court denied review thus avoiding the issue and not setting any precedent.  In a short but interesting dissenting opinion, however, one of the justices argued that the appeal raised a significant constitutional question that deserved explicit, reasoned resolution by the court. Unfortunately, the Court did not go for it.

Although the context is different, I think the issue is similar.  One of the issues discussed by the dissenting opinion in that case is the question of whether an applicant can be denied admission to practice for expressing views that would not subject a practicing lawyer to discipline.  The judge, thus, seems to imply that there is a strong argument that expressing racist views would not subject an attorney to discipline.

For more commentary on the freedom of speech implications of this case, you can check out:

Prof. Jonathan Turley's Res Ipsa Loquitur blog ("That does not sound like the basis of an ethics complaint.")

My Shingle (the "decision to file an ethics complaint against the commenter sets unspeakably bad precedent for bloggers exercising their First Amendment rights.")

Above the Law (I don’t see how it’s workable to sanction lawyers who say disgusting things online. Lawyers say racist, sexist things all time.)

Disbarring the Critics ("...disdain for the First Amendment by attempting to silence a critic, albeit an anonymous one, by using very general rules in the Rules of Professional Conduct...")

Having said all that, however, it is possible there is more to the story.  My comments (and those of the other blogs I linked to) are based on the assumption that the disciplinary complaint is based merely on commentary (speech), not on conduct.  The distinction is, of course, significant.  If the allegations are about conduct, particularly conduct that can be classified as criminal, then the issue is different and there would be a lot more support for the argument in favor of discipline.

UPDATE (July 21, 2014):   The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger. Even though I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions. If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different. However, it seems like the issue is now closed.  

Monday, January 27, 2014

California Supreme Court denies admission to Stephen Glass (based on evidence of past dishonesty as a journalist and lack of support for argument on rehabilitation)

Since the end of 2011 I have been following the case of Stephen Glass, once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital" who was later exposed as a fraud who completely fabricated many of his articles, including some while he was a law student.  Glass graduated and passed the bar exams in New York and California, but he withdrew his application in New York after learning his admission would likely be denied.  His application in California was denied by the Committee of Bar Examiners (CBE) but the decision 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 just issued its opinion.  My first post on the case is available here.  Since then, I updated the story with more information and links here, here, and here.  You can read the briefs filed before the California Supreme Court here, and watch the oral argument here.

The case generated a very interesting debate (and the links above will bring you to articles that argue for and against admission).  As I understand it, the nature of the debate has two elements:  the question of whether the conduct supports the denial of admission to the profession and the question of whether regardless of the original conduct, whether the candidate's conduct since the original conduct shows he has "changed."  Or, in other words, whether his evidence of "rehabilitation" shows he can be trusted to be a lawyer.

As to the first question, the Court is very clear.  The opinion is available here. The first sentences of the Court's opinion give you a good hint: "Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications. He also carefully fabricated supporting materials to delude The New Republic‟s fact checkers."

Evidently, the Court's emphasis is on the calculated dishonesty involved in the original conduct, which, as the court emphasizes, "violated ethical strictures governing his profession."  (It seems to me this comment essentially says that if Glass could not be trusted to abide by the ethical rules of his profession, there is no reason to believe he should be trusted to abide by those of the legal profession.)  The Court also emphasized the fact that the "misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him."

The Court describes the conduct in great detail and eventually gets to its conclusion stating that "[h]onesty is absolutely fundamental in the practice of law; without it ...the profession is worse than valueless in the place it holds in the administration of justice....“[M]anifest dishonesty . . . provide[s] a reasonable basis for the conclusion that the applicant or attorney cannot be relied upon to fulfill the moral obligations incumbent upon members of the legal profession.”

This last sentence summarizes the basis for the Court's first conclusion: that evidence of past misconduct can be used to predict future conduct.  If the candidate has been dishonest to this extent in the past, it is reasonable to expect that he probably will continue to be dishonest in the future.

This brings us to the second question: whether there is enough evidence of rehabilitation to conclude that this expectation is wrong.  Glass, obviously argued the evidence was in his favor, but the Court disagreed.  The Court dismisses Glass' arguments that he should be considered to be rehabilitated enough to show he is worthy of the public's trust.  The court wrote about instances of dishonesty and disingenuousness occurring after Glass's exposure and described his testimony as hypocritical.

To decide the case, the Court looked to cases discussing the standards that apply to lawyers seeking reinstatement, concluding there is no difference in the underlying principles between those cases and the issue in this case.  According to the Court's analysis, because the State Bar presented evidence of moral turpitude, Glass had the burden to demonstrate his rehabilitation and good moral character, which is usually done by showing a "substantial period of exemplary conduct following the applicant's misdeeds.” This, the Court concluded, he did not do, stating that "much of Glass's energy since the end of his journalistic career seems to have been directed at advancing his own career and financial and emotional well-being."

Thanks to the Legal Ethics Forum for the link to the opinion.

Saturday, January 25, 2014

Proposals to encourage more "innovation" in the practice of law

Carolyn Elefant, a blogger on issues that affect solo practitioners and small firms, has posted an interesting short comment on some obstacles solos and small firms face when it comes to innovation.  She argues, among other things, that "[i]t’s no coincidence that many of the innovations in the legal profession – the Axioms or RocketLawyers and matchmaking platforms are non-law firm entities that aren’t subject to ethics rules. As a result, these companies can push the ethics envelope without fear of serious repercussions. By contrast, if a solo or small firms experiment with a new approach to serving clients, like a virtual office space or a networking arrangement, they can lose their license or reputation if it turns out they made the wrong call (like the Connecticut solos who were prosecuted for ethics violations for participating in Total Attorneys’ lead gen program)."

In response she makes a few proposals including the adoption of "safe harbor within ethics rules to protect lawyers from disciplinary sanctions if they can demonstrate that they were diligent in researching the ethics rules associated with their action and made a reasonable decision based on their analysis."

You can read the full comment here.

Thursday, January 23, 2014

What should be the proper discipline for dishonesty on a resume?

When discussing the inconsistencies among states when it comes to disciplinary sanctions, I always tell my students that what they need to remember is that regardless of the conduct "you always risk disbarment" (simply because you never know what the authorities are going to do).

Now, this leads me to the question of the day.  Should an attorney be disbarred for embellishing his resume?

The ABA Journal is reporting today that a former Paul Hastings partner in London has been disbarred for embellishing his resume. He originally faced a three-year suspension, but the United Kingdom's Bar Standards Board imposed disbarment instead.

Are the authorities stricter (or the standards higher) in the UK?  I don't know about that, but I don't think an attorney would be disbarred in the US for just one instance of dishonesty on a resume.  Over the past few years, I wrote about a case in California where an attorney was suspended for using an outdated resume (here), and a case in Illinois where the attorney was suspended for altering a law school transcript in an attempt to get a job (here).  In that second case, I argued the attorney should have been disbarred because the conduct was particularly egregious in my opinion (and was not limited to the issue with the transcript).  Yet in the end the attorney was suspended for three years.  That is a pretty severe sanction, but it is not disbarment.

Monday, January 20, 2014

CNN story about rates of suicide among lawyers

Here is link to a story by on suicide among lawyers. It states, in part
One by one, state by state, bar associations say the tally is rising: Lawyers are killing themselves. The Centers for Disease Control and Prevention provided CNN with the latest available data on suicide deaths by profession. Lawyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population (adjusted for age).They come right behind dentists, pharmacists and physicians.
Lawyers are also prone to depression, which the American Psychological Association, among others, identified as the most likely trigger for suicide. Lawyers are 3.6 times more likely to suffer from depression than non-lawyers.
CNN's review of 50 state bar associations found eight associations so concerned about suicides that they took measures to stop the deadly pattern. California, Montana, Iowa, Mississippi, Florida, South Carolina and North Carolina added a "mental health" component to mandatory legal continuing education. Kentucky starts its annual conference on continuing education with a presentation on behaviors that increase the risk of suicide. So far, Kentucky has reached 7,000 lawyers.
In addition here is a short video on the story:

Thanks to the Legal Ethics Forum for the link.

Minimum sentences and prosecutorial discretion

Interesting short comment on how minimum sentencing laws result in more prosecutorial discretion and other dangerous effects on or criminal justice system.

Saturday, January 18, 2014

What if a lawyer wanted to represent a Colorado-based business that sells marijuana in compliance with state law but in violation of federal law?

As discussed by Prof. Anita Bernstein at the Legal Ethics Forum: "A federal law, governing pretty much everyone, prohibits the possession and use of marijuana—even by medical patients with scripts from doctors. Some state laws defy this prohibition. DoJ has declared that, for now, it will look the other way from well-behaved adult users in those states. And every jurisdiction has a counterpart to Model Rule 1.2(d), which says lawyers who “counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal…” are subject to discipline." So can a lawyer ethically represent a Colorado-based business that sells marijuana in compliance with state law but in violation of federal law? Go here for the full discussion.

Yet another judge finds that government lawyers committed egregious misconduct

Just a few days ago I posted links to articles and editorials commenting on the many cases where judges have found prosecutorial misconduct.  This week the Blog of the Legal Times is reporting on yet another case involving misconduct of government lawyers.  In this case, a litigation that challenges how the Federal Bureau of Prisons treats inmates classified as terrorists, the judge stated that lawyers in the U.S. attorney's office in Washington committed "egregious misconduct" in their handling of discovery.  Go here for the full story.

Possible liability for referring a case to another attorney?

Just as with everything else, when an attorney refers a case to another attorney there is a duty to use reasonable care.  Here is a short review of the issue.

Tuesday, January 14, 2014

Ohio lawyers are not prohibited from soliciting potential clients via text messages

Is it ethical for attorney's to solicit clients by "texting"?  There has been some discussion on this recently and here is a post arguing against it. The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules. I think texting does result in more of an invasion of privacy than regular mail or e-mail. Also, it can result in a minimal financial burden on the person who receives the message. However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The issue was in the news recently because of an Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages. The Advisory Opinion is available here and discussed here.

Are law firms buying bogus likes and followers?

Links to the story over at the Legal Ethics Forum.

Complying with Brady, from the prosecutor's perspective

There has been a lot of discussion of prosecutorial misconduct (here and elsewhere) during the past few years and most of it relates to prosecutors' failing to disclose evidence as required by Brady v. Maryland.  And, as readers of this blog know, I have been extremely critical of prosecutors who violate their duties and of judges to let them get away with it.  But we have not heard much from the prosecutors' perspective; so I was glad to see Prosecutor's Discretion, a prosecutor's blog I like to follow, post a comment on that.  In it he describes how sometimes the issue is not so clear cut.  Sometimes, there are multiple issues to consider and the choices the prosecutor has to make are not as easy as they might seem.  You can read the comment here.

Thursday, January 9, 2014

Washington Post joins NY Times and Los Angeles Times on prosecutorial misconduct

Just a few days ago I commented on recent developments related to prosecutorial misconduct including links to articles in the New York Times and the Los Angeles Times.  Today, Seeking Justice is announcing that the Washington Post has added its voice to the chorus.

Tuesday, January 7, 2014

NY Times editorial on programs designed to provide access to counsel to indigent defendants (and one response)

A few days ago, The New York Times published an editorial commenting on the need for states to provide alternatives to meet the needs of indigent defendants.  It discusses a model which uses "vouchers" that allow defendants to choose their representation.  Professor Stephen Gillers comments on that proposal here.

California Supreme Court rules that undocumented resident has a right to a law license

Since 2012, I have been following a case in California on whether an undocumented immigrant should be allowed to practice law.  Go here for links to many of those posts.  Here is a link to the oral argument before the California Supreme Court, soon after which the California legislature passed a bill on the issue which was promptly signed in to law.

Last week, the California Supreme Court issued its decision on the case holding that the candidate has the right to the law license.  I have not read the opinion, but according to reports, the court holds that the fact that practicing law by an undocumented immigrant might result in some violations of the law is not a bar to licensing.  For links and comments go to the Legal Ethics Forum and the Legal Profession Blog.

Chief judge of the 9th Circuit Court of Appeals warns of "epidemic" of Brady violations by the Justice Department

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. (Go here and scroll down for all my posts on the subject of prosecutorial misconduct.)  Last October, however, I posted a story (which I started with that same first sentence) about how "luckily, there is one court that is doing its part: the Court of Appeals for the Ninth Circuit."  In that story, I wrote about an oral argument (the story has a video of it) and a recent opinion.

Unfortunately, the latest on the subject from that court is not so encouraging. Last month it was reported that the court voted overwhelmingly to deny a rehearing in United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. Chief Judge Kozinski (joined by four other judges), however, issued a dissenting opinion opposing the denial of the rehearing. He begins the opinion with a sentiment I have been repeating for as long as I have been commenting on prosecutorial misconduct: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”  The dissenting Opinion is available here.

The case and the opinion by Kozinski have generated much commentary. For more information and comments go to:  Jonathan Turley, Seeking Justice, The Legal Ethics ForumSeeking Justice, againHuffington Post, The Los Angeles Times, and The New York Times,

The underlying problems in this case, like in so many others, deal with two related issues:  the extent to which a prosecutor has a duty to disclose material to the defendant and how to determine if a conviction should be reversed because of Brady violations.  Typically, courts will say that, under Brady, prosecutors have a duty to disclose evidence that is favorable and material.   Many jurisdictions, and the ABA, have adopted rules that impose a broader duty to disclose; others have denied that the rules impose a broader duty.

In this particular case, the Circuit Court found that the information in question was evidence favorable to the defendant and that it had not been turned over to the defendant's attorneys, but the court also determined that the evidence wasn't material.  And, having decided that the evidence wasn't material, the court did not decide whether the prosecutor engaged in misconduct.

To this, Kozinski reacted as follows:   "The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

This is a very important issue and I am going to take the chance here to predict that it will one of the hottest topics in Professional Responsibility circles this coming year.

Top Ten Stories of the Year

John Steele, of the Legal Ethics Forum, has posted has posted a great list of top stories of the year here.  It is definitely worth a look.  

There is also a "Top Stories List" on Canadian Professional Responsibility here, and one top story on the international front (here).

Monday, January 6, 2014

A few headlines

I am still away, but I am taking some time away from my time away between semesters to catch up with some of the headlines from the last few weeks:

The Supreme Court of Ohio rules that a Texas company with offices in Ohio engaged in the unauthorized practice of law when it prepared and filed a tax appeal and appeared before the Ohio Board of Tax Appeals.

Retired lawyer suspended for lack of e-mail address.  (Sounds odd, but if you read the story carefully you'll see the attorney was really disciplined for violating a specific court rule that requires a lawyer to provide an email address.  The more interesting question is whether that rule is warranted.)

Is it ethical for attorney's to solicit clients by "texting."  There has been some discussion on this recently and here is a post arguing against it.  The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules.  I think texting does result in more of an invasion of privacy than regular mail or e-mail.  Also, it can result in a minimal financial burden on the person who receives the message.  However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The Utah State Bar Ethics Advisory Committee recently issued a new opinion on "A Lawyer’s Options When a Client with Diminished Capacity Refuses to Act."   The opinion is available here.

Can lawyers advise marijuana growers in Colorado?  Lawyers are caught between the new state law that says marijuana is legal and federal law that still treats marijuana as an illegal drug.

Representatives from LinkedIn met with Florida Bar officials last month and outlined changes to the social media site that should help allay concerns raised by the Board of Governors and the Standing Committee on Advertising.

Attorney suspended for seeking sex with opposing counsel and having sex with client (in different case).

Lawyer prosecuted for an alleged ethical violation that occurred in the course of representing an attorney accused of an ethical violation.