The Chicago Daily Law Bulletin is reporting that in a petition for leave to appeal in a case called In re Rodney S. (No. 110963), a minor is urging the Illinois Supreme Court to reverse his adjudication of delinquency claiming he was deprived the right to counsel when his attorney acted as his attorney and as a guardian ad litem at the same time.
According to the article, the petition cites a 2007 report on delinquency representation in Illinois that concludes that "the type of delinquency representation provided in Illinois courtrooms varies from county to county, with some delinquency attorneys practicing 'best interest' representation, others following the 'express interest' model, and still others acting as both defense attorney and [guardian ad litem]." You can find the article here if you have an online subscription to the Chicago Daily Law Bulletin. Otherwise, look for it in print in the September 10, 2010 issue (Vol.156, Issue 177).
The petition originates from a decision by the 4th District Appellate Court holding, among other things, that the roles of a defense attorney and guardian ad litem are not always in conflict because they both have an obligation "to protect the juvenile's best interest even if those interests do not correspond with the juvenile's wishes."
That statement displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible. I hope the Court takes the case and issues an opinion clarifying the matter.
I also hope that the court takes a careful look at In the Matter of MR, 638 A.2d 1274 (NJ 1994), an opinion of the New Jersey Supreme Court, which is one of the best opinions I have seen on this subject (the reason I assign it to my students when we discuss this issue).
The case provides a very clear explanation of the problem and the proper approach. I hope the Illinois Supreme Court takes a look at it in deciding the case before it. In MR, the New Jersey Supreme Court explains the proper role of an attorney for an incompetent or a minor in the following terms:
As we have recognized in other contexts, the attorney’s role differs from that of a guardian ad litem. . . . A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate . . . and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed. A court-appointed guardian ad litem’s services are to the court ... The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. . . . .
. . . [T]he role of an attorney in abuse or neglect cases and in termination of parental rights cases must be as an advocate for the child. Nothing short of zealous representation is adequate to protect a child’s fundamental legal rights. . . . Requiring attorneys to act as counsel for children in these cases, does not deprive the court of the benefit of the type of assistance afforded by a guardian ad litem. Clearly, as counsel for the child, an attorney could request the additional appointment of a guardian ad litem, and the court sua sponte could do so if deemed necessary. Yet by clarifying an attorney’s role as counsel for the child, substantial evidentiary and procedural dilemmas could be solved. Under the present situation where attorneys assume a hybrid role of attorney/social investigator, questions arise such as the right of the attorney to speak with the parties outside the presence of their counsel; whether communications between a child and the attorney are privileged; and whether an attorney who submits an investigative report is subject to cross-examination. Finally, having attorneys act as counsel for children insures that they are being utilized for a role for which they are trained and suited. . . .
In sum, if it is true that there is confusion (or inconsistency) among Illinois courts on the proper approach to representation of minors in delinquency proceedings, I would fully support a petition to the Supreme Court to clarify the distinction between an attorney and a guardian ad litem.
In delinquency proceedings, the difference between attorneys and GALs is critical. The attorney should follow the client's wishes with the goal of avoiding a conviction or adjudication of delinquency. The guardian, on the other hand, has to fulfill a duty to the court and to act in the best interest of the minor. These two approaches will not necessarily lead in the same direction and should, thus, never be combined or confused. If that is happening now, attorneys are attempting to do the impossible, or, at least, are acting under a clear conflict of interest and the Court should put a stop to it.
According to the petition in In Re Rodney S., the attorney for the minor identified himself as a guardian at litem in court and advocated against the minor's desire to stay at his mother's home. If that is the case, the attorney provided ineffective assistance of counsel. If he was supposed to be advocating for his client, his job was to represent his client, not to advocate against his client. If, on the other hand, he had been specifically appointed to serve as a guardian ad litem by the court, then the minor simply had no legal representation at all in violation of his rights. Any way you look at it, the Court should, therefore, reverse and fix the problem.
You can read the opinion in In re Rodney S. here. In particular take a look at pages 9 to 11.
UPDATE 9/1/11: The Court rejected the appeal in In re Rodney S., but a few weeks later granted review in another case that raises the same issue. That case is called In re Austin M, and it is available here. The oral argument before the court of appeals in this case is available here. The oral argument before the Illinois Supreme Court is scheduled for this fall and the case should be decided by the end of this term.
UPDATE 1/12: The video of the oral argument before the IL Supreme Court is available here. If you prefer just the audio, go here.
UPDATE 9/1/12: The Supreme Court ruled an attorney can't serve as advocate and guardian at the same time. Go here for more information and links.
Sunday, September 12, 2010
Saturday, September 11, 2010
Yet another reversal because of prosecutor's comments
Last week a New Jersey appeals court overturned a conviction for attempted murder in part due to the prosecutor's persistent denigration of defense counsel. This is the fourth reversal due to prosecutors' comments I have heard of in about a month. The other three were in Illinois (see here).
In the New Jersey case the prosecutor reportedly disparaged defense counsel and the defendant. The prosecutor also called the defendant a liar, suggested that the defense wasted the jury's valuable time, and closed with a call for the jury to discharge its duty to society. The court concluded that "these cumulative errors by the prosecutor raise grave doubts that defendant received a fair trial." Go here for the full story.
In the New Jersey case the prosecutor reportedly disparaged defense counsel and the defendant. The prosecutor also called the defendant a liar, suggested that the defense wasted the jury's valuable time, and closed with a call for the jury to discharge its duty to society. The court concluded that "these cumulative errors by the prosecutor raise grave doubts that defendant received a fair trial." Go here for the full story.
Kansas Supreme Court reverses conviction because of judicial and prosecutorial misconduct
Law.com is reporting that a Kansas man convicted of child molestation will get a new trial because of misconduct by the judge and the prosecutor. The Kansas Supreme Court ruled on Sept. 3 that they each crossed the line during the trial of a defendant, who in 2008 was sentenced to 25 years to life for fondling an 8-year-old girl. The court found that the judge improperly questioned and encouraged the girl while she was testifying and that the prosecutor violated the defendant's right to remain silent in statements made during closing arguments. Go here for the full story.
Thursday, September 9, 2010
Illinois Ct of Appeals again reverses conviction because of ineffective assistance of counsel
Last week, I reported that the Illinois Court of Appeals recently announced two opinions in which it reversed convictions based on the deficient conduct of the defendants' attorneys. Surprinsingly, the court has reversed a third conviction in an opinion released today. The case is called People v. Sánchez and it is available here.
In this case, the court concluded that the defendant's attorney had failed to investigate the details of the defendant's prior conviction or that counsel was unaware of the law (which clearly holds that the prior conviction was inadmissible). The defendant's lawyer did not object to the admissibility of the conviction which the court found to support a finding of ineffective assistance of counsel. The court acknowledged that the decision whether to object is generally a matter of trial strategy, but it concluded that there was no valid strategic reason for trial counsel's failure to object to the admission of the defendant's prior conviction.
In this case, the court concluded that the defendant's attorney had failed to investigate the details of the defendant's prior conviction or that counsel was unaware of the law (which clearly holds that the prior conviction was inadmissible). The defendant's lawyer did not object to the admissibility of the conviction which the court found to support a finding of ineffective assistance of counsel. The court acknowledged that the decision whether to object is generally a matter of trial strategy, but it concluded that there was no valid strategic reason for trial counsel's failure to object to the admission of the defendant's prior conviction.
Sunday, September 5, 2010
Arizona lawyer may be in need of an exorcism.... or discipline
To quote Mike Frisch of the Legal Profession blog..."I thought that I had seen just about everything in the area of attorney misconduct, but a hearing officer's report from Arizona proves me wrong..."
Here is the story of a lawyer in Arizona who is facing discipline for her conduct in handling a client's wife's estate. The client's wife committed suicide and the lawyer handled the probate matters. Within days of the death, the lawyer began telling her client that his deceased wife had 'come' to her (the lawyer), that the 'spirit' of the wife was 'inside' her and that she could communicate the wife's thoughts. Before long, the deceased wife made it known that she wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.
Based on these facts, an Arizona Supreme Court hearing officer filed a report on the lawyer's conduct recommending that she be suspended for six months.
Interestingly, though, the report is very careful not to take a position as to an important fact in the case: whether the lawyer was actually possessed by the spirit of the deceased wife. In fact, the report hints at the possibility that it might be true that she was possessed and asserts that the client, the lawyer and other witnesses genuinely believed the lawyer was channeling the deceased wife's thoughts.
This raises an interesting question. If you believe that the lawyer was, in fact, possessed by a spirit, then she was not lying or scheming; she was not in control of her actions. And if that is the case, can you really justify imposing discipline?
Well, you can, but only as to the fact that the attorney tried to deny that she ever claimed to speak for the dead wife. So, she could be disciplined for lying to the disciplinary authorities, but I don't think that is the worst part of her conduct. The clear implication here is that she schemed the whole thing to take advantage of the client. Also, there's the issue of the sexual relationship with the client while representing him. If the court is going to impose discipline for those, I think the court is going to have to make a factual determination as to whether the lawyer was, in fact, possessed or whether she was pretending intentionally or simply delusional.
The hearing officer's report is available here.
UPDATES (October 2010): Here and here
UPDATE (March 2011): here.
Here is the story of a lawyer in Arizona who is facing discipline for her conduct in handling a client's wife's estate. The client's wife committed suicide and the lawyer handled the probate matters. Within days of the death, the lawyer began telling her client that his deceased wife had 'come' to her (the lawyer), that the 'spirit' of the wife was 'inside' her and that she could communicate the wife's thoughts. Before long, the deceased wife made it known that she wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.
Based on these facts, an Arizona Supreme Court hearing officer filed a report on the lawyer's conduct recommending that she be suspended for six months.
Interestingly, though, the report is very careful not to take a position as to an important fact in the case: whether the lawyer was actually possessed by the spirit of the deceased wife. In fact, the report hints at the possibility that it might be true that she was possessed and asserts that the client, the lawyer and other witnesses genuinely believed the lawyer was channeling the deceased wife's thoughts.
This raises an interesting question. If you believe that the lawyer was, in fact, possessed by a spirit, then she was not lying or scheming; she was not in control of her actions. And if that is the case, can you really justify imposing discipline?
Well, you can, but only as to the fact that the attorney tried to deny that she ever claimed to speak for the dead wife. So, she could be disciplined for lying to the disciplinary authorities, but I don't think that is the worst part of her conduct. The clear implication here is that she schemed the whole thing to take advantage of the client. Also, there's the issue of the sexual relationship with the client while representing him. If the court is going to impose discipline for those, I think the court is going to have to make a factual determination as to whether the lawyer was, in fact, possessed or whether she was pretending intentionally or simply delusional.
The hearing officer's report is available here.
UPDATES (October 2010): Here and here
UPDATE (March 2011): here.
Friday, September 3, 2010
For the third time in less than a month Illinois ct of appeals reverses conviction because of prosecutor's comments
For the third time in about a month the Illinois Court of Appeals has reversed a conviction because of comments made by the prosecutor. The most recent case is called People v Adams and it is available here. For a discussion of the previous two cases go here and here.
In Adams, the prosecutor attempted to argue against the allegation that a police officer planted evidence on the defendant by pointing out that the officer was an 8 ½-year veteran police officer and that it was illogical that he (and another officer) would risk their jobs, their freedom and their reputations over 0.8 grams of cocaine if they had lied about finding the cocaine.
The Court of Appeals found the comments improper concluding that the prosecutor was attempting to bolster the witnesses’ testimony by suggesting that they had more credibility simply because they were police officers. The Court also concluded that the defendant was prejudiced by the comments because the evidence was "closely balanced."
In Adams, the prosecutor attempted to argue against the allegation that a police officer planted evidence on the defendant by pointing out that the officer was an 8 ½-year veteran police officer and that it was illogical that he (and another officer) would risk their jobs, their freedom and their reputations over 0.8 grams of cocaine if they had lied about finding the cocaine.
The Court of Appeals found the comments improper concluding that the prosecutor was attempting to bolster the witnesses’ testimony by suggesting that they had more credibility simply because they were police officers. The Court also concluded that the defendant was prejudiced by the comments because the evidence was "closely balanced."
Illinois Ct of Appeals issues two opinions reversing convictions because of ineffective assistance of counsel
Ineffective assistance of counsel is a contention that is often raised by defendants on appeal and in the vast majority of cases it is rejected. Yet, the Illinois Court of Appeals has recently announced two opinions in which it has reversed convictions based on the deficient conduct of the defendants' attorneys.
The first case is called People v Baines and it is available here. It was announced about two weeks ago, although, apparently it is a corrected version of an opinion originally written back in March. If it was announced back in March, I must admit I missed it then, so I am looking at it for the first time.
In Baines, the court concluded that the record was "replete with examples of unusual behavior by defense counsel" and that, thus, it was "evident . . . that there is merit to the defendant’s contention that his representation fell below an acceptable standard."
Among other things, the court found that during his direct examination, it was the defendant who was trying to guide the attorney in how to conduct the questioning in order to elicit relevant information. The court also noted that the attorney elicited from the defendant a damning admission and that "the gravity of the harm caused by this evidence was lost on defense counsel, as he continued to question his own client in a manner which bolstered the State’s case." In the opinion, the court cites the trial transcript extensively and describes the trial in detail to support its conclusion that the attorney's representation was completely inadequate.
In a dissenting opinion, Judge Theis argued that although trial counsel rendered a deficient representation during the course of the trial, the defendant was not prejudiced.
The second case is called People v. Mescall and it is available here. In this case, the court reversed the trial court's judgment dismissing defendant's postconviction petition and remanded for further proceedings on the ground that defendant presented an arguable basis that counsel was ineffective for failing to challenge the trial court's error in imposing mandatory consecutive sentences.
The first case is called People v Baines and it is available here. It was announced about two weeks ago, although, apparently it is a corrected version of an opinion originally written back in March. If it was announced back in March, I must admit I missed it then, so I am looking at it for the first time.
In Baines, the court concluded that the record was "replete with examples of unusual behavior by defense counsel" and that, thus, it was "evident . . . that there is merit to the defendant’s contention that his representation fell below an acceptable standard."
Among other things, the court found that during his direct examination, it was the defendant who was trying to guide the attorney in how to conduct the questioning in order to elicit relevant information. The court also noted that the attorney elicited from the defendant a damning admission and that "the gravity of the harm caused by this evidence was lost on defense counsel, as he continued to question his own client in a manner which bolstered the State’s case." In the opinion, the court cites the trial transcript extensively and describes the trial in detail to support its conclusion that the attorney's representation was completely inadequate.
In a dissenting opinion, Judge Theis argued that although trial counsel rendered a deficient representation during the course of the trial, the defendant was not prejudiced.
The second case is called People v. Mescall and it is available here. In this case, the court reversed the trial court's judgment dismissing defendant's postconviction petition and remanded for further proceedings on the ground that defendant presented an arguable basis that counsel was ineffective for failing to challenge the trial court's error in imposing mandatory consecutive sentences.
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.
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.
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.
Thursday, September 2, 2010
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.
Thanks to the Legal Ethics Forum for the link.
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