Comment on Connick v Thompson's oral argument

Here is a link to a comment on the oral argument in Connick v Thompson published as part as the continuing coverage of the case by the Supreme Court of the US blog (SCOTUSblog).

Article on "unbundling" of legal services

Here is a link to a new article in the Illinois Bar Journal on "unbundling" of legal services.

There is a lot of talk about the concept of "unbundling" of legal services these days. Unbundling usually refers to an agreement in which the attorney agrees to help the client with a distinct and limited task. For example, the attorney would agree to review a document that the client will use to negotiate a deal by himself. The attorney's representation in such circumstances is "limited" to reviewing the document. For everything else, the client is either on his or her own or will rely on other lawyers.

Some say "unbundling" allows lawyers to provide access to legal representation to people who could not otherwise afford to hire the lawyer to represent them in all aspects of the case. Others respond, that that has always been the case.

The more difficult question we need to address is whether an attorney who writes a court document for a pro-se litigant should be required to disclose (in the document) that the lawyer helped the client prepare it. A recent ethics opinion in the state of New York concluded that attorneys could remain incognito. In response it has been said that anonymity can result in abuses and in lawyers taking advantage of the clients they are supposedly trying to help by unbundling the services. Go here for my comment on this question.

This debate is now before the Supreme Court of Illinois. It is considering some proposals to amend certain rules to regulate limited representation in the state. The proposals are available here. Interestingly, the proposal regarding "ghostwriting" is the opposite of the view adopted in New York, which, in my opinion, is a very good thing.

On former client conflicts

Law.com is reporting (here) the story of Miami attorney Jonathan Aronson who was one of Royal Caribbean Cruises’ go-to defense lawyers on hundreds of personal injury and employee lawsuits for a decade. In 2009, however, the company established an in-house legal department and used Aronson for only one case. So he decided to "switch sides" and started suing the company as a plaintiff lawyer -- 65 times in 2009 to be exact. In response, Royal Caribbean is trying to get Aronson disqualified in all the cases arguing his representation of the plaintiffs against his former client is a breach of ethics and violation of attorney-client privilege, So far, these attempts have fallen flat, which is understandable if the Florida rule is like the ABA Model Rule on the subject. In fact, if the rules are the same, Royal Caribbean's argument should be rejected every time.

The third paragraph of the comment to the ABA rule states that "[m]atters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential FACTUAL information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter" and that "[i]n the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation."

It is only knowledge of specific facts gained in a prior representation that are relevant to the matter in question that ordinarily will preclude such a representation.

Md. Court Rules Defendants Have Right to Counsel at Bail Hearing

In a ruling that could have a major impact on the Maryland Public Defender’s Office, a state judge in Baltimore found that indigent criminal defendants have a right to counsel at their initial bail hearings. Story here.

Attorney sanctioned for comments and attitude during trial; but Ct does not declare a mistrial

Pharmalot has a story (here) about Gary Douglas, a plaintiff's attorney who represented a client who claimed Fosamax caused her to develop osteonecrosis. A few days ago, the judge in the case hit Douglas with a $2,500 sanction due to what has been described elsewhere as his manic and outrageous conduct during trial. According to the story, Douglas referred to another trial when he should not have done so, attacked the FDA during his summation over the way the agency is funded, characterized the FDA and the pharmaceutical industry for having an “incestuous relationship,” compared the FDA’s ability to monitor drug safety with the federal government’s response to Hurricane Katrina, improperly injected his own opinion concerning evidence into his summation, improperly referred to adverse event reports, accused Merck and its attorneys of hypocrisy, repeatedly disparaged defense witnesses and acted rudely, using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing and what the judge called "fooling around’ and making fun.” The judge's order is available here.

Although I have not looked at the record, it does sound like the totality of the circumstances justified imposing sanctions, but I have to say that I don't have that much of a problem with the part about the comments during the closing argument. After all, the FDA is underfunded and its relationship with the pharmaceutical companies is questionable. Was it relevant in the case? Was there evidence in the case to support the claim? I don't know... but assuming there was some relevance and some reference to it, I would have let this go as examples of acceptable rhetoric. The defendant would have its turn to counter the statements. They were not so damaging.... Go here for the full story.

But the story does not end there. Once the jury came back with an $8 million verdict for the plaintiff, the defendants (and their supporters) are complaining that the plaintiff's lawyer's antics should have resulted in a mistrial and that they should be granted a new trial. See here. The court, however, found no need for a new trial because the lawyer's conduct did not touch on the key evidence of the case. Instead, the judge reduced the judgment from the $8 million awarded by the jury to $1.5 million - which is half of what the plaintiff wanted.

Supporters of the defendant's position have argued (here) that the fact the plaintiff’s told the jury that his client needed $3 million as full compensation for her injuries and the jury awarded $8 million is "a big, flashing, incontrovertible sign that counsel’s advocacy improperly influenced the jury." "What else could possibly explain that verdict?"

Well, since I have not seen the record, I really don't know. But I can say this: no, the verdict, by itself, is not an incotrovertible sign of anything other than the fact that the jury thought $8 million would be a better result than the one the lawyer asked for. And why could that be the case? Maybe the jury thought the lawyer was incompetent and that the evidence showed the client should be better compensated; maybe the jury wanted to impose punitive damages to punish the defendant but couldn't so they added more zeros to the compensatories; maybe the jury wanted to "nullify"; maybe the jury was incompetent... who knows?

As even the defendant's supporters have argued, "attempts to ascertain the prejudicial effect of conduct are necessarily based on speculation about the effect of that conduct on a jury." Thus, at least from what I have seen so far, I think the judge was justified in denying the request for a new trial. Since I am as intolerant of improper conduct as the next guy, I am certainly willing to be convinced otherwise, but that's what I am saying now.... The judge should deal with the conduct by imposing sanctions or contempt, not by giving the defendant a new trial.

Law.com has more on the story here. AboutLawsuits has the story here.

Listen to oral argument for Connick v Thompson here

At the end of each week the Supreme Court releases audio recordings of the week’s oral arguments. Go here to listen to the oral argument on Connick v Thompson. It is available in several different formats including windows media and MP3.

NBC cancels "Outlaw"

As expected, the TV show Outlaw has been cancelled. (See here and here). The Blog of the Legal Times is reporting that the remaining episodes of the show will be aired, but no new ones will be made unless there's a surprise uptick in viewership. That is not likely to happen! Now the question is which lawyer tv show lasted less: Outlaw or The Deep End? Does anyone know? Watch The Defenders or The Whole Truth instead.

Connick v Thompson: the "other" case the Supreme Court heard yesterday

Snyder v. Phelps was the center of attention yesterday at the Supreme Court, but it was not the only important case the Court heard. The other important case before the court was Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit had affirmed a $14 million award for the wrongful conviction and death sentence of the defendant in a murder case.

The basis of the claim is that the defendant district attorney's office failed to train its lawyers on their legal and ethical duty to disclose exculpatory evidence, which resulted in the wrongful conviction of the then-defendant-now plaintiff. The opinion of the Court of Appeals is available here.

When originally reported in the Blog of the Legal Times, District Attorney Leon Cannizaro Jr. was said to have appealed the ruling to the Supreme Court, "asserting that upholding the 5th Circuit's decision "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct.""

This is a strange argument since the original claim was not based on vicarious liability at all but on the conduct of the district attorney's office itself. According to a story in Slate magazine, at one point, when questioned under oath the then-district attorney Harry Connick, Sr. could not articulate the Brady rule and after listening to two days of testimony about how Connick ran his DA's office, with the acting prosecutors blaming each other and fumbling over conflicting and inaccurate explanations of what Brady requires, a federal court jury in New Orleans awarded Thompson a $14 million verdict in 2007. The jury found that his 18 years behind bars (14 of which he spent in solitary confinement on death row) were caused by Connick's deliberate failure to train his prosecutors on their obligations to turn over exculpatory evidence. According to the Innocence Project, a national organization that represents incarcerated criminals claiming innocence, 36 men convicted in Orleans Parish during Connick's tenure as DA have made allegations of prosecutorial misconduct, and 19 have had their sentences overturned or reduced as a result.

The petitioners' response has been to argue that prosecutors should have absolute immunity from suit— because the plaintiff did not show there was a "pattern" of violations of the duty under Brady. They argued repeatedly that the case was the result of a single violation and in response to some questions during the oral argument appeared to argue that, even if there was a pattern of conduct, there could never be liability for the first offense.

The misunderstanding about whether the case is about vicarious or direct liability aside, the case will have important implications for the concept of prosecutorial immunity and the reach of the possible civil liability in tort and of the ethical responsibilities of the DA's office and its prosecutors.

The case also has another interesting connection to another issue of professional responsibility: the original case against the defendant was the underlying case in In Re Riehlmann (La 2005) often discussed in connection with the duty to disclose attorney misconduct under Rule 8.3. This was the case in which a former prosecutor, upon learning he was dying of cancer, finally decided to unburden himself and confess to a friend (Riehlmann) that he (the prosecutor) had intentionally withheld exculpatory evidence in a case that resulted in the imposition of the death penalty. That case was the case against Thompson, the then defendant-now plaintiff who eventually got the $14 million for the wrongful conviction.

So, let's recap. In 1985, a prosecutor withholds exculpatory evidence intentionally in a case against a man named Thompson, who is then convicted and sentenced to death. In 1994, the prosecutor confesses what he did to his friend Riehlmann. Riehlmann does nothing about this for 5 years. After the exculpatory evidence is discovered in 1999, Riehlmann reveals what the former DA had told him. (Years later, Riehlmann is disciplined for his own misconduct in failing to disclose the prosecutor's misconduct). Eventually, after spending almost 20 years in death row for a crime he did not commit, Thompson's conviction is vacated, he is re-tried and found not guilty. Thompson then sued for damages arguing a violation of this rights under 42 USC Sec 1983 and was awarded $14 million. The Court of Appeals affirmed and now the Supreme Court will review the case.

Interpreting the questioning by the justices during yesterday's oral argument, Law.com concludes that the "Supreme Court justices on Wednesday appeared ready to give the green light to efforts by a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit."

For a detailed account of the story behind the case go to Slate.

For more on the case go to the Legal Ethics Forum, USA Today, the Washington Times, the Boston Herald, the Law.com, Main Justice, and the the Washington Post. (Thanks to Scotus Blog for these links).

For the actual transcript of the oral argument go here.

For all the briefs, the opinion of the Court of Appeals and other legal documents go here.

UPDATE Oct 8: Go here to listen to the oral argument.

Yet another conviction reversal because of prosecutor's improper comments

About a month ago, I posted a comment about yet another case reversing a conviction due to the prosecutor's improper comments during the trial (see here). That one was the fourth such case I had heard about in a month. Now, just short of a month later, here is a fifth case. In this new case, called People v Vance, the prosecutor asked the jurors to imagine how the victim must have felt as he was dying and attempted to narrate the last moments of his life in detail. Defense counsel objected and the judge sustained the objection but the prosecutor continued with the same type of argument even after the objection was sustained several times. There is no way to know whether the prosecutor really knew that what she was doing was wrong, but what we do now is that she is not likely to be disciplined (see here). Now that the conviction has been reversed, hopefully she and other prosecutor do know that such tactics are not only wrong but also counterproductive. For a description of the case, including the actual comments by the prosecutor go to the Legal Ethics Forum here.

ABA responds to critics regarding access to ethics opinions

A few days ago, I posted a note about the debate on the availability (or lack of it) of ABA Ethics Opinions and the ABA's practice to charge for granting permission for others to copy or use the opinions in some cases. See here. In response, the ABA has published this announcement.

Interestingly, the announcement actually admits to the accuracy of the main criticism: the ABA does not allow others to post the opinions on their own sites claiming copyright protection. Instead, the ABA encourages others to link to the ABA’s website to access the opinions, but since the opinions are only available free of charge for six months, the links are of little use to those who are not members of the ABA after that period of time. Those who defend the ABA's position argue that enforcing copyright protections allows the ABA to generate some income to cover the costs of providing its services to the profession and that lawyers who want to enjoy the benefits of those services should contribute to pay for them.

Thanks to the Legal Ethics Forum for the update.