California modifies statute of limitation for malpractice claims vs criminal defense lawyers

The California legislature, in what is believed to be the first instance of its kind in the nation, has enacted a law specifically addressed to the statute of limitations for actions by wrongfully-convicted persons against their attorneys. When proof of innocence is an element of the claim, the new law sets the time limit at two years from the date of post-conviction exoneration.

Go to the Ethical Quandary blog for more information.

Ethical issues related to the debate over the NYC Mosque

Here is a link to an interesting discussion on ethical issues related to the litigation over the attempts to build a mosque in New York City.

How not to practice law: pay your employees "under the table"

Here is a new addition to our running commentary on how NOT to practice law. For the most recent updated list of links on this topic go here.

The Legal Profession Blog is reporting today that a Massachusetts attorney has been suspended because he agreed to pay one of his employees "under the table." The Court found that by not reporting to state and federal authorities the income paid to his employee, the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c).

In this case, the lawyer asked his new employee to sign a W-4 form, but the employee said she would prefer not to because she wanted to maintain her MassHealth benefits. In other words, the employee wished to hide her income from the state authorities so that she could continue to receive MassHealth benefits for which she otherwise might not be qualified. Understanding this, the lawyer agreed to not report the employee’s income to the state and federal authorities and paid her weekly in cash for about seven months.

Given that the neat arrangement was a secret between the attorney and the employee, you wonder how did the state find out about the misconduct, eh?

Eventually, the attorney terminated the employee's employment. Given that he had never reported her employment to begin with, she was not eligible for unemployment benefits, but, at her request, the lawyer made the appropriate payments to the state unemployment commission and acknowledged her status as a former employee. It didn't take long for the Massachusetts Attorney General’s Office to put two and two together and the lawyer was hit with a civil penalty of $2,000 and now a suspension.

Three cases on the consequences of improper speech by judges and attorneys

Law.com reported yesterday that an Atlantic County, New Jersey, Superior Court Judge has been hit with ethics charges for allegedly launching into a tirade against an unrepresented family court litigant who complained about a child-visitation schedule he ordered. Go here for the full story. In the complaint, Advisory Committee on Judicial Conduct counsel alleged that the heated invective called into question Baker's ability to remain impartial.

Meanwhile, the Chicago Daily Law Bulletin is reporting today of case in which a convicted murderer has asked the Illinois Supreme Court to order a new sentencing hearing because the sentencing judge called him a derogatory term for gay men in court before sentencing him to more than a century behind bars. In his petition for leave to appeal, the defendant contends that the utterance of the derogatory slur used to describe gay men was "indicative of the sentencing judge's abandonment of impartiality in the sentencing process."

Finally, Law.com reported a few days ago (here) that a Florida state appeals court has thrown out a $1.4 million jury verdict because of "inflammatory and prejudicial comments" made in court by the plaintiffs attorney. Go here for the court's opinion. The Court concluded that the attorney engaged in "improper litigation tactics" that went well beyond "partisan zeal" and that "indisputably require reversal."

Another opinion on whether a conviction should be reversed because of prosecutor's comments

A few days ago (here), I commented on a new case in which the court reversed a conviction because of comments made by the prosecutor. Now comes another opinion from a different division of the appellate court in which the court rejects a similar claim. This new case is called People v Chester and is available here.

Are the cases consistent? You be the judge.

In the case that reversed the conviction, the court found that the prosecutor's remarks were offered to draw the jury’s attention to defendant’s decision to exercise right not to testify. Here is what the prosecutor said:

“Have you heard any evidence that he didn’t know they were the police?” . . . “You didn’t hear anything from that witness stand. You didn’t hear any evidence that he didn’t know they were the police."

In the case announced today, the court found that at least part of the prosecutor's statement was improper, but then concluded taht the error did not deny defendant a fair and impartial trial. Here is what the prosecutor said:

"What did the defendant do? Well, we have heard testimony from the officer and the officer testified hasn't been refuted or questioned in any way, you haven't heard any other testimony to refute what the officer said ..."

WSJ article on lawyer suicides

In the wake of the July 15 suicide of partner in the Chicago firm Reed Smith, the Wall Street Journal Law Blog has published a short article and a summary of this article from "American Lawyer" by Steven Harper, a former Kirkland & Ellis partner turned blogger and adjunct professor.

Unfortunately, suicides among lawyers are not rare. In fact, a report distributed at the annual meeting of the ABA Center for Professional Responsibility last May states that lawyers suffer depression, commit suicide & abuse alcohol and drugs at approximately twice the rate of the general population.

Illinois Court of Appeals reverses conviction because of prosecutor's comments

Just about a month ago, the Illinois Court of Appeals (4th division) issued an opinion in which it took the unusual step of reversing a conviction because of certain comments made by the prosecutor during summation. The case is called People of Illinois v Roderick Smith and it is available here.

In a key passage of the opinion, the court concludes:

In this case, . . . we see no purpose for the prosecutor's remarks other than to draw the jury’s attention to defendant’s decision to exercise his federal and state constitutional right not to testify . . . By overruling defense counsel's objections, the trial court in effect permitted the jury to infer defendant's guilt from his failure to present evidence in his own behalf.

I have in the past criticized the court for giving prosecutors "a pass" on conduct like this (see here). I am glad to see the court took a different approach to the issue this time around.

On the difficulty of imposing consistent sanctions, again

Law.com is reporting today that a nine-member District of Columbia Court of Appeals Board on Professional Responsibility has issued a split recommendation on sanctions for the misconduct of a former assistant U.S. Attorney for the District of Columbia. Four members recommended disbarment, three recommended a three-year suspension, and two recommended a one-year suspension. Because none of the recommendations was in the majority, the final decision will be up to the D.C. Court of Appeals. For a copy of the the board’s report and recommendation go here. For the full story from Law.com, go here.

Sanctions for conduct outside practice of law

What sanctions would you impose for the following conduct?

"Lawyer X left work, consumed alcohol, then fled from the police and ran eight red lights and stop signs while exceeding 100 mph. He then intentionally rammed another vehicle occupied by others in an attempt to cause great bodily injury, and fled the scene of the collision without stopping. Eventually, Lawyer X pled guilty to felony evading while driving recklessly, misdemeanor driving under the influence of alcohol/drugs, misdemeanor hit and run with property damage, and an amended felony charge of battery."

In the actual case, Lawyer X was suspended for one year and one day. What do you think: too much, too little, just right?

Florida case asks whether inadequate funding of public defender's office results in violation of consitituional rights; Michigan says no.

Here is a link to a comment posted in the Crim Law Prof Blog discussing State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010), a case to be heard by the Florida Supreme Court that asks whether the limitations imposed by inadequate public funding of a Public Defender's office results in a violation of the constitutional rights of the defendants the PDs represent.

In this case, the Public Defender's office of Florida's 11th district asked the court to be relieved of its obligation to be appointed to represent all future non-capital felony cases because the office's inadequate funding resulted in such an overload of cases for each individual lawyer that they felt they were not able to comply with legal and ethical duties to the clients. The lower court granted the request and the case is now under review.

Interestingly, the Missouri public defender's office has also decided not to take any new cases (here).

In a similar case, the Michigan Supreme Court recently reversed itself and threw out a lawsuit that was aimed at holding the state responsible for failure to provide adequate funding to hire lawyers for poor people accused of crimes. Go here for that story.

Thanks to the Legal Ethics Forum for the information.