A federal court magistrate in New York has decided that information shared with someone the client mistakenly thought was a licensed lawyer is not protected by the attorney/client privilege.
In this case, a trademark infringement claim by Gucci America Inc. against Guess Inc., Guess sought discovery of Gucci's communications with its in-house counsel Jonathan Moss, who was not licensed to practice law in any state at the time. He had been a member of the California bar until 1996 or 1997, but then became inactive. Gucci claimed the communications were protected by the attorney-client privilege but the magistrate disagreed.
In his order, the magistrate states that Gucci cannot "cloak itself under a veil of ignorance" to avoid handing over to a competitor communications with its former chief in-house counsel and held that Gucci could not justify its "mistaken belief" since the company "was plainly in a position to confirm the extent of [Mr. Moss'] qualifications as a legal professional and failed to do so."
Over at the Legal Ethics Forum Prof. Stephen Gillers argues that the decision is wrong because arguably "Gucci officers acted reasonably. The fact that they could easily have discovered [the lawyer's] inactive status (stressed in the opinion and by Guess?) doesn't mean they were unreasonable in accepting that he was a lawyer under the facts of the case. And a lawyer can be inactive one place and active elsewhere."
I agree with this, up to a point. It depends on what the client knew and when. If they knew the guy was not an attorney and confided in him anyway, I don't think the client has a right to then claim the privilege. But if they were, as Prof. Gillers points out, reasonable and really did not know of the attorney's inactive status, I would agree the client should be given the benefit of the privilege. Remember that the attorney client relationship can arise out of a misunderstanding - when the client believes there is a relationship because the attorney was not clear about whether he or she would accept the representation. (remember the Togstad case?)
Following that same line of reasoning, a client should be allowed the benefit of the relationship (the privilege) if the client reasonably believed the attorney was an attorney and that they (client and attorney) had a professional relationship.
Now that the real status of the lawyer is known, another question arises. What if the court takes the magistrate's recommendation and rules against Gucci; can Gucci sue the attorney for malpractice for having hurt Gucci's case because he was negligent in handling his licensing requirements. And, if so, can the attorney claim comparative negligence because Gucci failed to institute a policy to check on the licensing status of its in-house attorneys?
The magistrate's order is available here. For more on this story go to Law.com.
UPDATE #1 (July, 2010): Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.
UPDATE #2 (Jan 2011): The magistrate's decision holding that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege was overturned. See here.
Wednesday, June 30, 2010
Georgia Supreme Court reverses conviction and asks lower court to determine validity of state's public defenders system
In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel. More on this story on Law.com and the Legal Ethics Forum.
Suspension for insulting the judge
It is unfortunately no secret that not all judges are competent or fair. It is not uncommon to read opinions disciplining judges or allegations of corruption. Yet, what is the best way to deal with the situation? How should a lawyer appearing before a court address a problem with the judge? That is a very difficult question and not an easy decision to make. Sometimes an attorney must react even if it means risking being found in contempt. But there are obvious risks involved. Tread carefully.
Here is an example. The Legal Profession Blog is reporting today that the Illinois Review Board has recommended a six-month suspension for an attorney who made disparaging remarks to a judge. The attorney apparently was angry about the judge's decision to summarily place a fourteen year old child with someone he (the lawyer) claimed to be an addict. In a letter to the judge, the lawyer stated that "As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?"
Although portions of the letter are improper, I am not sure I would have imposed a six month suspension for it. Unfortunately, this was not an isolated incident. The lawyer reportedly also insulted administrative law judge in a different case.
The opinion is available here.
Here is an example. The Legal Profession Blog is reporting today that the Illinois Review Board has recommended a six-month suspension for an attorney who made disparaging remarks to a judge. The attorney apparently was angry about the judge's decision to summarily place a fourteen year old child with someone he (the lawyer) claimed to be an addict. In a letter to the judge, the lawyer stated that "As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?"
Although portions of the letter are improper, I am not sure I would have imposed a six month suspension for it. Unfortunately, this was not an isolated incident. The lawyer reportedly also insulted administrative law judge in a different case.
The opinion is available here.
Monday, June 28, 2010
Improper comments?
The following two paragraphs are from actual statements made in Cook County Court in Illinois. Are they examples of acceptable, harmless rhetoric or should they be considered improper?
The word ‘strict’ in the phrase ‘strict liability’ does not mean anything it is just a name! It is created to intimidate people, it is self-made invalid authority, it is meant to implant in people undeserved and unjustified respect to the ordinance built on fear and misunderstanding but empty inside and not applicable in my case.
-------
Robbery, it is a good business as it is something for nothing – a pure gain. Germans do not do it anymore after their discouraging experience 65 years ago (1945) as it is too dangerous now and people are watching them. Therefore they retreated to more subtle ways such as cheating, lying and acting dishonestly under the cover of law, usually as lawyers, exploiting us on this way.
Thanks to On the Record in Cook County for the quotes
The word ‘strict’ in the phrase ‘strict liability’ does not mean anything it is just a name! It is created to intimidate people, it is self-made invalid authority, it is meant to implant in people undeserved and unjustified respect to the ordinance built on fear and misunderstanding but empty inside and not applicable in my case.
-------
Robbery, it is a good business as it is something for nothing – a pure gain. Germans do not do it anymore after their discouraging experience 65 years ago (1945) as it is too dangerous now and people are watching them. Therefore they retreated to more subtle ways such as cheating, lying and acting dishonestly under the cover of law, usually as lawyers, exploiting us on this way.
Thanks to On the Record in Cook County for the quotes
Friday, June 25, 2010
NLJ editorial on the need to expand legal aid services
"With the legal needs of the poor rising in volume and intensity, more access to legal aid is a needed stop on the road to economic recovery." This is the start of an editorial published today in the National Law Journal online, available here.
Wednesday, June 23, 2010
More on the Supreme Court's decision in Holder v. HLP and possible constraints on attorney advice
Yesterday I said I would continue to update the list of links to comments on the recent decision by the Supreme Court in Holder by simply adding them to a previous post. But I want to point out a particularly interesting one here.
In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.
She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."
On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[r]estricting … attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.
I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.
It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.
In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.
She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."
On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[r]estricting … attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.
I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.
It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.
Tuesday, June 22, 2010
Sentencing hearing video
Last May, I came across this video just as it became public over the internet. I mentioned it in class briefly because it raises many interesting questions but, unfortunately, I did not have enough time to discuss it in detail.
The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.
When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.
One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.
The issues I think the video allows me to explore are these:
The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)
This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.
I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?
Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")
Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?
Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.
If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.
Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):
PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....
The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.
When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.
One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.
The issues I think the video allows me to explore are these:
The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)
This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.
I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?
Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")
Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?
Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.
If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.
Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):
PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....
More comments on yesterday's US Supreme Court opinion
Here are two more links to comments on yesterday's Supreme Court Opinion upholding the criminalization of "material support." I will keep adding links to this post if I see more from now on.
Go here for a comment by Jonathan Turley, in which he makes the following very interesting point: "Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts."
For more coverage of the case go to:
The New York Times
Law.com
Room For Debate (NY Times)
The Wall Street Journal
Blog of the Legal Times
Wall Street Journal law blog
Go here for a comment by Jonathan Turley, in which he makes the following very interesting point: "Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts."
For more coverage of the case go to:
The New York Times
Law.com
Room For Debate (NY Times)
The Wall Street Journal
Blog of the Legal Times
Wall Street Journal law blog
Monday, June 21, 2010
NY Times publishes debate on today's Supreme Court decision on criminalizing advocacy
The New York Times.com's "Room for Debate" section has just published three short Op-ed pieces debating today's Supreme Court decision on the constitutionality of a statute criminalizing advocacy for certain groups. The pieces are by David Cole (Georgetown University Law Center), Richard A. Epstein, (University of Chicago Law School) and Stephen I. Vladeck (American University Washington College of Law). Cole sets the stage by stating that "[f]or the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity." Go here for read the three articles.
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