Justice Stevens on prosecutorial misconduct

A few days ago, I posted that I felt I had been wrong to speculate that the Supreme Court actually wanted to address the problem of prosecutorial misconduct (see here). Well, it turns out maybe I was just partially wrong... in a way...

In a speech Monday night to the Equal Justice Initiative, retired Justice John Paul Stevens criticized the Court's decision in Connick v Thompson stating that it and other decisions have given local prosecutors impunity for violating constitutional rights.   Go here for the full text of the speech. (Thanks to the Wall Street Journal law blog for the link.)

The Wall Street Journal law blog and the Blog of the Legal Times have more on the story.

Short deposition transcript

Short deposition in a divorce case.... WARNING: vulgarity and foul language ahead. Go here for the transcript.

How not to practice law: don't pay your student loans

The Legal Profession blog is reporting on a recent decision by an Illinois Hearing Board recommendeding a suspension of six months of a 1994 University of Chicago law grad for bad faith failure to repay student loans. Go here for more information. Go here for the opinion itself.

Prosecutorial Misconduct

Long time readers of this blog might remember that I often referred to 2010 as the year of prosecutorial misconduct. There were so many scandals it seemed that the topic was in the news constantly. As 2009 ended, the US Supreme Court heard oral arguments in what seemed to be a pretty important prosecutorial misconduct case (Pottawattamie County, Iowa v. Harrington), but then it settled.

Almost as soon as it settled, though, the Court granted review in another misconduct case (Connick v Thompson). I immediately speculated that the Court was just looking for a case to comment on the issue and to criticize what seemed to be widespread prosecutorial misconduct.

It is now pretty clear I was wrong. The Court decided Connick without making any comments about prosecutorial misconduct in general. For the majority, the facts of the case were an isolated - one time - incident.

There may be other opportunities for the Court to express itself on this growing issue, but I am not going to hold my breath.

Here is a link to a recent article by Erwin Chemerinsky, Dean of the UC Irvine School of Law, called "Head in the sand over prosecutorial misconduct" in which he criticizes the Court for failing to express itself about the problem and concludes:

These two cases [Van de Kamp v. Goldstein,decided in 2009 and Connick v. Thompson, decided this year)],share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system.

For a lot more information, links and comments on Connick, Pottawatamie and other prosecutorial misconduct issues go to my section on Prosecutors here.

Ethics 20/20 commission on outsourcing and confidentiality of metadata

According to information in the ABA/BNA Lawyers' Manual on Professional Conduct, at its eighth meeting, held April 15-16 in Washington, D.C., the ABA Commission on Ethics 20/20 agreed on the substance of tentative recommendations that it expects to make to the ABA House of Delegates next year for modernizing ethics standards on the outsourcing of services and confidentiality issues arising from modern technology.

As to the outsourcing of legal services, the commissioners agreed that the rules should instruct lawyers to obtain informed client consent in most instances before they allow other lawyers to work on a client's matter.

Interestingly, this is already the law in Illinois where Rule 1.2(e) states that "after accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer not in the lawyer's firm the responsibility for performing or completing that employment, without the client's informed consent."

As for the issues regarding technology, the commission endorsed the idea of adding a black-letter rule recognizing that lawyers have an affirmative obligation to safeguard client information no matter what forms of technology they use to generate, transmit, and store data.

Although there is nothing wrong with this proposal, I am not sure it adds anything to the well established duty of confidentiality, other than to say to lawyers that they have to be careful not to disclose confidential information by accident -- something we knew already.

In addition, the commissioners have decided to suggest that the presence of metadata in a document tranferred electronically does not, by itself, suggest an inadvertent disclosure. Thus, the commissioners largely agreed that the presence of metadata should not in itself trigger a duty to notify the sender.

I am not sure I agree with this. I could be wrong but I think that when a document has metadata it is more than likely the result of inadvertence.

UPDATE (5/7/11):  The Legal Ethics Forum has links to the documents and comments on them here.

How not to practice (bankruptcy) law

William Freivogel, whose excellent website on conflicts is available here, sent me a copy of a recent case we can add to our on-going list of "how not to practice law" series. In this case, called In re: Moon Thai & Japanese, Inc the court reviewed several bankruptcy cases a law firm filed on behalf of clients and found, among other things, that the firm had agreed to represent more clients than it could handle, that the firm's attorneys showed a lack of understanding about conflicts of interest, that the firm used questionable practices in handling retainers, that the firm appeared to be using the services of an attorney who had been suspended by the court and that the attorneys appeared to have misrepresented facts during a hearing.

Based on these findings, the court required both partners in the firm and an associate to complete 60 hours of continuing legal education in bankruptcy law and prohibited them from representing new clients until they obtained permission from the court to do so.

To give you some perspective on the CLE assignment... My Professional Responsibility class is a 3 credit class which means that over a 14 week semester it meets 42 hours total. My Torts class is a 4 credit class, which meets a total of 56 hours a semester. Sixty hours of CLE in one topic should take these guys a long time to complete.

How not to practice law: offer to help law students cheat

Here is a story on the ABA Journal on a Massachusetts lawyer who was suspended for six months for placing advertisements on Craigslist to write students’ term papers and essays. That sanction is too lenient in my humble opinion. He knowingly offered to help law students cheat, which shows he does not care about rules, integrity or ethics. Is that the kind of character you want representing clients out there? Go here for more on the story.


Thanks to Christi Brock for the link.

Budget cuts and legal services

Here are the links to two related stories on funding for legal services.

The Blog of the Legal Times is reporting that the bipartisan deal on the federal budget includes a $15.8 million midyear cut for the Legal Services Corp., which is the nation's largest funding source for civil legal aid to the poor. This is not good news, but the cut is actually smaller than the $70 million originally proposed by the House Republicans. Go here for the full story.

In a related story, the Wall Street Journal law blog discusses budget cuts for public defenders' offices across the country. Go here for that story.

Michigan Court orders new trial because of ineffective assistance of counsel; Counsel apparently "threw" the case

The Chicago Tribune and Prof. Jonathan Turley are reporting that the Michigan Court of Appeals has found a defense attorney rendered ineffective assistance of counsel after the prosecutor herself raised concerns. The prosecutor claimed that defense counsel told her that defense counsel "held back on her defense" because she thought the defendant was actually guilty. Defense counsel did not deliver an opening statement and did not present a single piece of evidence. She also declined to cross examine the victim and other key witnesses and did not object the prosecutor's use of hearsay evidence. The court concluded that "counsel failed to subject the prosecution’s case to any meaningful adversarial testing." Go here and here for the full story.

If true, the conduct of the defense attorney was shameful. On the other hand, after so many stories of prosecutorial misconduct in the past couple of years, it is refreshing to hear about a prosecutor who takes seriously her duty to make sure that justice is done, not just that convictions are obtained.

The case is People v. Gioglio and it is available here.

John Thompson, the plaintiff in Connick v Thompson, writes about his case in the New York Times

Here is a link to a short article by John Thompson, the plaintiff in Connick v. Thompson, published today in the New York Times. The article starts like this "I spent 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished." Towards the end, Thompson adds "I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued."

These are all valid questions, although it should be clarified that the prosecutor who withheld the evidence died and the one to whom he confessed but did not disclose was disciplined. Harry Connick, Sr., the original defendant, in charge of the prosecutors' office, retired I believe. To my knowledge, though, no one else has been disciplined.