Illinois Court of Appeals rejects argument re conflict of interest in case where attorney represented alleged perpetrator and victim at same time

About a month ago, the Illinois Court of Appeals (Fourth District) issued an opinion in a peculiar case in which a convicted defendant argued he had received ineffective assistance of counsel, among other reasons, because his attorney operated under a conflict of interest.

The underlying incidents upon which the State based its sexual-abuse charges against the defendant in the case and against the other co-defendant included allegations that they engaged in sexual misconduct with each other. In other words, the state's case alleged, at least in part, that the co-defendants were alleged victims of each other.

How could a lawyer represent both co-defendants at the same time? If they were victims of each other, it would be in each person's interest to point the finger at the other, which would make it improper for the attorney to represent them jointly.

Not surprisingly, the co-defendants did not allege either abused the other as part of their defense. And it is precisely based on the fact that the defendants did not point the finger at each other that the court holds now that the attorney's representation did not constitute a conflict.

Am I missing something here? Doesn't this translate into this: the attorney puts himself in a position where he can't make a certain argument because if he does he'd violate his duty to a client - which means he had a conflict - so he doesn't make the argument and then the court says that the fact he did not make the argument shows he did not have a conflict.

I think the lower court should have prevented him from representing the defendants jointly.

The case is called In re Austin and the opinion is available here.

How not to practice law: continue to practice during your suspension

As with pretty much every single other entry in the on-going "how not to practice law" series, all we can say is "duh!"

The Chicago Daily Law Bulletin is reporting today that a disciplinary panel has decided to suspend a Chicago attorney for nine months because he continued to practice law while his license was suspended during 2008.

The lawyer was careful not to go to his office and did not meet with clients, but he hired a young associate who had recently been admitted to the Illinois bar to do the work. The lawyer continued to work "behind the scenes." He contacted the associate and his secretary many times daily, gave instructions, helped with the preparation of the cases, and drafted documents and letters that the associate later signed.

As an aside, did anyone notice that the guy's license was suspended to begin with? I don't know what he did the first time that got him suspended but, let's face it, this is now his second suspension (assuming there are no others). So let's review: The lawyer did something that warranted a suspension. Then he decides to disregard the suspension and continues with his practice, gets caught and admits to the authorities that he had engaged in unauthorized practice of law.... and now he is just suspended again? Why wasn't he disbarred?

And, as a second aside, what about the "young associate"? I am sorry for her, but it should have been pretty obvious to her that she was helping a person practice law in violation of the rules. She should have rejected the job offer. Now she should be disciplined too.

Justice Sotomayor speech

Here is a video of a recent speech by Justice Sonia Sotomayor at the University of Denver Law School. If, for some reason, you don't see the video just below this line, you can watch it here.




Thanks to the Legal Ethics Forum for the link.

Verdict reversed because of plaintiff's lawyer's comments

For the second time this month, the 3rd District Court of Appeal in Florida has issued a reversal because of inflammatory arguments by an attorney. In this case, the defendants admitted liability, but that did not stop the plaintiff's attorney from making arguments to disparage the defendants as greedy, arrogant and callous corporate types who had no intention of compensating the plaintiff for his injuries. In trial, he said the defendants kicked the plaintiff "out on the street like a dog"; complained of "corporate arrogance and corporate greed"; and called defense attorneys "slick talkers." Go here for the full story.

Attorney suspended for billing for more than 24 hours in one day

Go here for the story of an Ohio attorney who has been suspended for two years after it was determined that she billed the court of Lucas County, Ohio for more than 24 hours a day on multiple occasions. She also turned in other bills of dubious nature, including five bills for days of over 20 hours.

Thanks to the Legal Ethics Forum for the information and link.

How not to practice law: make sure you tell the jury the information the judge had excluded

Here is our latest addition to the running list of things you should NOT do when practicing law. As usual, it is an easy one. If the judge excludes certain material from the trial you are NOT supposed to bring it up to the jury.

The Legal Ethics Forum is reporting today on a case called State v. Cifuentes-Vicente, in whcih the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning.

New California Rule on screening

As reported in The Ethical Quandary Blog, the California State Bar Board of Governors has approved a new rule on imputation of conflicts of interest based on ABA Model Rule 1.10, but, oddly, it has opted to let the issue of ethical screening be decided on a case-by-case basis. The Board’s proposed change is now pending consideration by the California Supreme Court.

I guess I have to think more about this one, but my gut reaction is that it is a bad idea. It seems to me that any time you leave things to be decided "on a case by case basis" you run the risk of ending up with more disputes and litigation, inconsistent results, and, more importantly, less guidance as to how to avoid a problem. Specific rules help know what to expect and, thus, how to prepare for a possible problem.

On the other hand, a case by case approach provides flexibility for instances where applying a hard line rule might be unfair. Also, I assume that as case law develops on the issue more specific answers will emerge. Until that happens, though, some clients may have to become guinea pigs, no?

What do you think?

Public defenders and imputed conflicts of interest

The Legal Profession Blog is reporting that the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.

The opinion (Op 2010-5) addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.

The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.

The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”

$2 million dollar sanction for frivolous lawsuit

I have often complained on this blog about inadequeate/lenient sanctions for misconduct. I can't complain today! The Wall Street Journal is reporting that a New Jersey state judge has ordered Paul Weiss and Lowenstein Sandler to pay almost $2 million in legal fees for filing what she considered frivolous suit. Wow! Now that's a big sanction; and by the way, that is supposed to come out of the firm's pocket - not the client's.. In the lawsuit a billionaire plaintiff argued that his father in law had made an oral promise to leave a greater share of his estate to his daughter - the plaintiff's late wife. For more on this story go to the WSJ Law Blog.

Conduct unrelated to the practice of law

Last night we discussed in class how an attorney can be disciplined for conduct outside the practice of law. Interestingly, apparently there is some debate in Australia as to whether this should be the case. Here is a link to an article discussing the issue (via The Legal Ethics Forum).