Whistleblower protections and in-house counsel

Just a couple of days ago, my class covered issues related to "in-house counsel" including the Balla v Gambro decision denying lawyers the right to sue for wrongful discharge when they are fired for acting according to professional conduct obligations. Today I saw in my print version of the National Law Journal a new article on that very subject. Here is a link to it.

Mandatory pro-bono in Mississippi

Three days ago I noted that the Mississippi Supreme Court is considering requiring attorneys to perform 20 hours of pro bono service. Today, Law.com is reporting on the story here. Law.com's report adds that under the proposed plan attorneys who do not perform the mandated hours would have to pay a $500 fee. It is not clear whether the fee is to be paid as a form of punishment or as a way to comply with the obligation by providing funding for legal services.

What's with all the lawyer shows on tv?!

I don't watch a lot of TV, but I try to check out shows about lawyers just in case they raise issues I can discuss in class. There have always been shows about lawyers, although many of them were (or are) disguised "detective" stories - more interested in the drama of figuring out "who did it" than on the legal issues that surround the case. But I don't remember so many lawyer shows running at the same time.

Right now there are four new lawyer shows on - three of them at the same time on Wednesday nights. At some point there were promos going around about a fifth one, but I suspect that one may have been dropped since I have not seen or heard anything about it since it was announced back in the summer.

In any case, the new lineup includes Outlaw, about which I have written before and which every report I have read agrees is crap, The Defenders, The Whole Truth and Law and Order LA. These last three run against each other on Wednesday nights.

Here is a quick review of the Defenders by one of the law blogs I read regularly. In a nutshell, this appears to be just another disguised "detective" show (with a comic tone to it, I guess) in which lawyers do the detecting in order to help their clients.

Last Wednesday I opted to watch The Whole Truth instead and here is my quick review: The show tries to be more serious than the others. It follows the work of a district attorney and a defendant's lawyer as they prepare for and try a criminal case. The editing is done so that you get to see the work of each side separately which is interesting, although perhaps not the best narrative model. Given time constraints, the pace of the show is a bit too fast or frantic and the defendant's lawyer (and his firm) follow a familiar Hollywood mold.

What the producers are trying to sell as "different" about this show is that the lawyers never really know "the truth." Now, this is realistic, but unfortunately, the show then feels the need to fill the void for the audience by "solving" the uncertainty at the end. In other words, the audience will know in the end what really happened, even if the characters in the show do not. That's too bad. I think the show would be better if it left everyone with that realistic uncertainty of not really knowing, but I guess I understand this would not make for a popular choice among TV producers who want a happy audience....

USA Today article on prosecutorial misconduct

USA Today has published a long article on prosecutorial misconduct that concludes that federal prosecutors repeatedly have violated their duties as ministers of justice in courtrooms across the nation, adding that "[t]he abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." The article (which includes lots of links to even more information) is available here.

Can lawyers use social media to gather information about opposing party?

The Legal Ethics Forum is reporting that the New York State Bar Association has issued an Ethics Opinion on investigations through the use of social media. The New York opinion states that, as long as the lawyer does not use deception, a lawyer can typically use any other information that is either publicly available or accessible to anyone who is a member of the network. The opinion can be found here. A similar opinion from the Philadelphia bar can be found here.

Thanks to the Legal Ethics Forum for the information and links. For more information go to the Legal Ethics Forum here and here.

UPDATE Oct 7, 2010: The Ethical Quandary has a comment here.

More on the question of rude behavior

A few days ago, I posted a comment on whether rude behavior constitutes unethical conduct (here), a topic that generated some responses in The Legal Ethics Forum (here).

Adding to the discussion, the Legal Profession blog is reporting that a Colorado Hearing Board has imposed a suspension of a year and a day on an attorney for his pattern of disrespectful and contemptuous behavior in a federal court trial. Among other things, the attorney called another attorney a “fucking weasel” after the attorney reminded the insulting attorney that he should not coach his client during a recess. The attorney also called another attorney a “pinche cabrón” and an “hijo de puta.” (In the footnotes, the board defines these terms as "damned goat, big goat" and "son of a whore," which made me laugh. The word "cabrón" is, in fact, quite insulting to a Spanish speaker, but I can tell you it has nothing to do with a "goat"!! )

It is important to note that both incidents ocurred out of the jury’s presence and involved comments made to another attorney, not to a party as in the case I wrote about a few days ago. Yet, the board found the attorney acted with the intent to disrupt the tribunal in violation of, among others, Rule 8.4.

How not to practice law: ask client to pay fees with drugs

Here is the most recent addition to our running list of examples of how not to practice law. This is one we have seen before (here) and it should be pretty obvious. As usual, the underlying principle is simple: don't ask your client to pay your fees with cocaine!

The Legal Profession blog and Law.com are reporting that North Dakota's Supreme Court has disbarred an attorney for asking a client for cocaine.

Aside from the basic principle, though, the issue of drug addiction presents another problem. If the attorney has an addiction, is disbarment the proper sanction? Should the bar have a duty to attempt to help the lawyer seek rehab? Would it be better to suspend the lawyer subject to proof of completion of rehab and then allow the lawyer to be readmitted subject to conditions like periodic testing or something like that? Or is the risk to clients to high?

Does an attorney have a duty to non-clients?

The Court of Appeals of Kentucky has issued an opinion that illustrates one of the few instances where attorneys are sometimes held to owe a duty to a non-client. In that case, the court held that although the plaintiff was not a client, the attorney owed a duty because the plaintiff may have been an intended beneficiary of the lawyers' conduct and the lawyers failed to do a proper title search. The case is called Tipton v. Porter and it is available here.

Meanwhile, a court in New Jersey reached the opposite result in a case called Holvenstot v. Nusbaum (available here).

More and more people qualify for legal aid; is mandatory pro-bono an answer to the crisis?

The Census Bureau's recently released a report that details that nearly 57 million Americans now qualify for civil legal assistance from programs funded by the federal Legal Services Corporation (LSC). That's the number of Americans who, in 2009, were at or below 125 percent of the federal poverty level threshold, an income ceiling of $27,563 a year for a family of four. This is an increase of 3 million from 2008.

Meanwhile, the Wall Street Journal is reporting that the Mississippi Supreme Court is considering a proposed rule to require lawyers in the state to provide at least 20 hours of pro bono work.

But Mississippi lawyers are reportedly not happy that altruism may be forced upon them, the Clarion-Ledger reports.

Read the full sotry (with links to more) in the Wall Street Journal Law Blog. Also, click here to see Above the Law’s take on the proposed rule.

Attempt to regulate attorney speech in Utah abandoned

Back in June, the Wall Street Journal reported that a proposal was being discussed in Utah to regulate what lawyers could say about the judicial system. The proposed amendment to the rules would have stated that "[a] lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the judicial system . . ."

As you would expect, there was substantial opposition to the new rule and four days ago The Salt Lake Tribune reported (here) that the Supreme Court’s Advisory Committee on the Rules of Professional Conduct, which made the proposal initially, decided to recommend against adopting the change.

Thanks to Christi Brock for the update.