On Monday, February 16th, the ABA will webcast its deliberations concerning the proposed amendment to Model Rule 1.10. The link to the webcast is here.
This is a contentious issue. Prof. Andrew Perlman has posted a short comment over at Legal Ethics Forum.com in which he provides some good links to posts for and against the notion of screening.
As he explains, "[t]he issue is difficult, in part, because it is hard to know just how dangerous a screening provision is. . . . If lawyers will breach the screen with any kind of frequency . . . the screening provision is a bad idea. If a breach of the screen will occur in very few cases, the benefits of screening probably outweigh the costs."
Prof. Perlman's comment is available here.
Sunday, February 15, 2009
Saturday, February 14, 2009
Now you can subscribe by e-mail
I have added a form for you to enter your address if you want to receive updates by e-mail. All you need to do is enter your address in the form and follow the instructions. You will get one message a day -- and only if there is any new content added to the blog. However, you will not get notice of any comments to the posts. Also, I am not sure if you get photos or video embedded in the e-mail messages. You may have to come visit the site itself for all those. E-mail me directly if you have any problems with this new feature. The form appears at the bottom of the right hand side panel.
Site's new look
Just for fun, from time to time I will change the look of the website. Feel free to post comments or to e-mail me to let me know what you think...
Thursday, February 12, 2009
Judge does not know the law; neither do appellate lawyers
What do you get when you have a lawyer who does not know the law appealing a decision of a judge who does not know the law either? You get US v Beltran Moreno a decision issued two days ago by the Court of Appeals for the Ninth Circuit.
In this case, two defendants pleaded guilty to a multiple-count indictment. Because the district court judge was not familiar with the law regarding sentencing, he calculated a mandatory minimum sentence of twenty years, which was twenty years lower than that required by statute. What’s more, the district judge then exercised his discretion to depart downward from the US Sentencing Guidelines recommendation, sentencing the defendants to thirty-five years in prison instead of imprisoning them for the rest of their lives as the Guidelines suggest.
The defendants’ trial counsel had the good sense not to object to the district court’s sentence, which — given that it was lower than legally mandated — was certainly better than they could have possibly imagined. But, their appellate counsel, remarkably, decided to appeal their sentences and, even more remarkably, did so based on an argument that the court of appeals describes as "squarely foreclosed by decades-old circuit precedents." The court also noted that "counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law."
Why in the world would anyone seek to appeal if there was only one direction in which the defendants' sentences could go, and that was up — by at least five years?
The only thing that saved the defendants from their own lawyers was the fact that the government surprisingly did not appeal (didn't they know the law?) and that a year after they filed their notices of appeal, the Supreme Court held in another case that an appellate court cannot raise a defendant’s sentence if the government has not appealed.
The conduct of appellate counsel is just another example of how not to practice law and they were very lucky the court did not impose sanctions. They filed an appeal that, given the law at the time, could only have resulted in a higher sentence for their clients and did so based on a frivolous argument. Only because of the subsequent decision of the Supreme Court were the clients spared the consequences of their attorneys poor judgment.
As the court of appeals concludes:
"We hope that this case will serve as a strong warning for the defendants’ appellate counsel." . . .
. . . We remind counsel that the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the relevant case law and to advise a client properly on the consequences of an appeal. While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been. We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous. Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions. However, in the future, we caution counsel to be more diligent, for their own sakes and, more important, for their clients’."
The opinion is available here.
Thanks to Lou Gasperec for pointing me to this little jewel.
In this case, two defendants pleaded guilty to a multiple-count indictment. Because the district court judge was not familiar with the law regarding sentencing, he calculated a mandatory minimum sentence of twenty years, which was twenty years lower than that required by statute. What’s more, the district judge then exercised his discretion to depart downward from the US Sentencing Guidelines recommendation, sentencing the defendants to thirty-five years in prison instead of imprisoning them for the rest of their lives as the Guidelines suggest.
The defendants’ trial counsel had the good sense not to object to the district court’s sentence, which — given that it was lower than legally mandated — was certainly better than they could have possibly imagined. But, their appellate counsel, remarkably, decided to appeal their sentences and, even more remarkably, did so based on an argument that the court of appeals describes as "squarely foreclosed by decades-old circuit precedents." The court also noted that "counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law."
Why in the world would anyone seek to appeal if there was only one direction in which the defendants' sentences could go, and that was up — by at least five years?
The only thing that saved the defendants from their own lawyers was the fact that the government surprisingly did not appeal (didn't they know the law?) and that a year after they filed their notices of appeal, the Supreme Court held in another case that an appellate court cannot raise a defendant’s sentence if the government has not appealed.
The conduct of appellate counsel is just another example of how not to practice law and they were very lucky the court did not impose sanctions. They filed an appeal that, given the law at the time, could only have resulted in a higher sentence for their clients and did so based on a frivolous argument. Only because of the subsequent decision of the Supreme Court were the clients spared the consequences of their attorneys poor judgment.
As the court of appeals concludes:
"We hope that this case will serve as a strong warning for the defendants’ appellate counsel." . . .
. . . We remind counsel that the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the relevant case law and to advise a client properly on the consequences of an appeal. While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been. We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous. Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions. However, in the future, we caution counsel to be more diligent, for their own sakes and, more important, for their clients’."
The opinion is available here.
Thanks to Lou Gasperec for pointing me to this little jewel.
Anticipation over the ABA's possible adoption of a screening rule
The Feb 16 edition of the National Law Journal (available here now) has an editorial supporting the proposed changes to the ABA Model Rules that would allow screening.
Wednesday, February 11, 2009
More examples of how not to practice law...
If the judge gives you an order, follow it or fight it but don't go behing the judge's back to avoid it. The ABA Journal.com reports today on a case where a lawyer, after voluntarily withdrawing from a personal injury case when his law firm was accused of bribing an employee of the defendant, tried to avoid a court's order that he forgo any fees in the case by entering into a secret fee sharing agreement with the attorney who took over the case. Phew, that was a long sentence! So let me get this straight. This guy is caught bribing a possible witness and the judge lets him withdraw on the condition that he not make any money in the case, and then he goes and tries to do it anyway.... and gets caught... again.
Monday, February 9, 2009
Are lawyers' First Amendment rights being unfairly limited?
Today's National Law Journal has a short article discussing a series of cases in California, Florida, Michigan, New York and Ohio which the article says are "at the center of legal debates and constitutional battles involving harsh and sometimes vulgar comments about judges." The article is available online here (although I am not sure if you have a subscription to access it online).
Thursday, February 5, 2009
Illinois disqualifies almost 600 attorneys for failing to attend CLE
The Illinois Attorney Registration & Disciplinary Commission has announced that it has dropped nearly 600 lawyers from its list of those qualified to practice in the state, citing their lack of compliance with new continuing legal education requirements. The agency booted the attorneys from the state's so-called "master roll" this year when they failed to file the paper work showing they had completed 20 hours of certified legal training between July 1, 2006, and June 30, 2008.
Tuesday, February 3, 2009
New Center on the Legal Profession at Stanford Law School
Stanford Law School has launched the Stanford Center on the Legal Profession, which will focus on professional responsibility, leadership development and quality of life issues. Stanford law professor Deborah L. Rhode will serve as its director. She is the founder and former director of the school's Center on Ethics. The Center of the Legal Profession will work to expand services to low- and middle-income individuals. It also will address issues pertaining to the lives of lawyers, including escalating billable hour requirements and diversity in the profession. In addition, the Center on the Legal Profession will offer interdisciplinary leadership development and continuing legal education leadership programs.
Monday, February 2, 2009
Effect of the 5th Amendment right against self-incrimination in disciplincary proceedings
The Illinois Review Board has posted a decision today that explains the procedure to follow when an attorney facing discipline refuses to answer questions by claiming the protection of the 5th Amendment. Here, after the lawyer refused to answer certain questions on Fifth Amendment grounds, the Administrator sought an unfavorable inference and to have the invocation treated as a sign that the lawyer was not candid and cooperative. The board held that although was appropriate for the Hearing Board to draw an adverse inference from Respondent’s assertion of the Fifth Amendment for purposes of their function as a fact-finding body, it was inappropriate for the Hearing Board to have treated that assertion as tantamount to a "failure to cooperate" or as an aggravating factor for purposes of imposing discipline. The opinion is available here.
Thanks to David Frisch of Legal Profession Blog for the information.
Thanks to David Frisch of Legal Profession Blog for the information.
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