New case on prosecutorial misconduct before the Supreme Court

After the Supreme Court granted review in Connick v Thompson just after it was prevented from deciding Pottawattamie County, Iowa v. Harrington because it settled, I speculated that the Court was looking for a case to criticize what seemed to be widespread prosecutorial misconduct.  Once it decided Connick by essentially avoiding commenting on the notion of prosecutorial misconduct directly, however, I was forced to admit I had been wrong.

This is why I am now dazed and confused by the news that the Court has decided to grant review to a new case of prosecutorial misconduct out of New Orleans.

Reporting for the SCotUS blog, Lyle Denniston writes that "[j]ust weeks after the Supreme Court divided deeply over the tactics of prosecutors in New Orleans, the Justices on Monday decided to take another look, adding a new case claiming repeated violations of those prosecutors’ duty to share information that would help defense lawyers. Public defender lawyers, in the new case, aimed strong complaints at the District Attorney’s office in Orleans Parish, contending that it has “a well-documented history of hiding…from defense counsel” evidence of potential aid to the defense."  Go here to read the full report.  The case will be decided next term.

In Connick, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. So, the question now is whether this new case presents enough evidence to support a "deliberate indifference"?  Have the justices now seen the light and are ready to reverse their view of the conduct of the DA's office? 

I am not going to speculate this time...

For lots of information and links to comments on Connick, go to my sections on Supreme Court or Prosecutors and scroll down.

Judge reprimanded for trying to force lawyer to recite the pledge of allegiance

Back in December I reported a story (here) about a judge who sent a lawyer to jail for contempt when a lawyer refused to recite the pledge of allegiance in open court after being ordered to do so by the judge.  The Wall Street Journal is reporting that the Mississippi Supreme Court has voted unanimously to discipline the judge.  The court concluded the judge abused his power.  Go here for the full story.

Podcast on the ethics of structured settlements

Here is a link (also here) to an episode of the radio show Ringler Radio in which hosts Larry Cohen and Teddy Snyder talk to Seth J. Davis, a private mediator, about the ethics of structured settlements for lawyers and mediators.

UPDATE: Michigan adopts a 30 day waiting period rule

Last month I reported that Michigan adopted a new rule imposing a waiting period on certain types of communications sent to victims of accidents.  See here.  Here is a bit more information on the new rule.

As you probably know, the U.S. Supreme Court confirmed a state's authority to impose a temporary ban on attorneys' direct-mail solicitations to accident victims in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995).  Following that decision, a number of jurisdictions have enacted a waiting period for attorney solicitation after accidents.  Last month, Michigan became the most recent state to do so.

The (5 to 4) decision in Went for it is controversial. Personally, I do not find it convicing at all. It simply does not follow the applicable precedent and doctrine.  Also, while claiming that the challenged rule was needed to advance the right to privacy of the victims, the rule did not prevent defendant's lawyers from invading that privacy.  It only applied to plaintiffs' lawyers. 

This problem has been addressed by some of the jurisdictions that have adopted waiting period rules since then, but not by all.  The newly adopted rule in Michigan was approved on a 4 to 3 vote by the Michigan Supreme Court.  The text of the new rule, which can be found here is not entirely clear on this point.

In one of the dissenting opinions, Justice Markman argues that the rule places small firms at an increasing economic disadvantage to the large law firm in terms of client solicitation.

Technical problems with the blog

For the second time in just a few weeks, I have been experiencing serious technical problems with the system that hosts my blogs (ie, "Blogger"). I have enjoyed using Blogger and I like many of its features but I am becoming increasingly frustrated with the problems I am experiencing. The last time I had problems, Blogger was updating some features and the problems resolved themselves after a few days. I am hoping this is the case again. Otherwise, I may not be able to post new information for a few days and I may soon be looking to move the blogs to a new system or stop blogging altogether. If you have any comments or suggestions please send them to me by email.

UPDATE: The next big thing: whether to allow non-lawyers to own shares of law firms

A few months ago, I thought that "the next big thing" in legal ethics was going to be a debate over whether to allow the use of screening to avoid concurrent conflicts of interest in some cases.  I may be wrong.  It is starting to look like the next big thing is going to be a debate about whether nonlawyers should be allow to own equity stakes in law firms.

One reason this has not been allowed up to now is to avoid the possibility that non-lawyers - essentially "investors" in the firm - or the need for investors might compromise the lawyers' independent professional judgment. 

This concern is not trivial in my opinion.  But, as the Wall Street Journal reports today (here and here), pressure is building in the business to let law firms raise capital from nonlaywers. Yesterday, plaintiffs’ firm Jacoby & Meyers filed suits in New York, New Jersey and Connecticut claiming that their state rules barring outsiders from owning stakes in firms unconstitutionally restricts interstate commerce.  For more on the story, go to the Legal Ethics Forum (here)

If successful, this case could lead to the most significant change in which law is practiced in the United States in many years.

The Commission in charge of reviewing and revising the ABA Model Rules just announced it will hold a meeting to discuss this issue during the upcoming annual meeting of the Center for Professional Responsilbity in Memphis, June 1-4.  For information (and to register) for the annual meeting, go here.

UPDATE (5/20): Blogger Eric Turkewitz has a comment on the idea of allowing non-lawyers to acquire shares in law firms here and here (hint: he is against it).

IL lawyer in trouble for deception in the process of investigating compliance with the law

An Illinois Assistant Attorney General is the subject of an interesting ethical charge after allegedly using a "ruse” to gain evidence against a condominium project for lack of handicapped access.  He is accused of entering the premises under the false pretense that he was looking for a condo for his grandmother. More on the story here.  The complaint is available here.

This is an example of an old question: whether it is ethical to engage in some level of deception in order to confirm whether someone else is discriminating.

Assuming all the facts are true, the lawyer in question was, in fact, dishonest.  But he was dishonest "with good intentions" or for a good reason -- in order to find whether the other party was violating the law.

In part, the solution to the problem might be simply to let others do the investigating or, as in this case, the "testing."  Attorneys should stay out of it and wait until the information is gathered to intervene in the prosecution.  On the other hand, an attorney can't ask someone to do something the attorney can't do himself, so I am not sure where that leaves the attorney who needs to engage in some level of deception to gather the information.

Any thoughts?

Michigan adopts waiting period rule

The Michigan Supreme Court has adopted a new version of Rule 7.3 that prohibits solicitation of accident victims within 30 days of the accident or injury. The rule will implement regulation that is permissible in light of the Supreme Court's decision in Florida Bar v. Went For It.  The decision was not unanimous, though.  There are dissents. For more on the story and a good quote from one of the dissenting opinions, go here. 

Florida Bar v. Went for It is a terrible decision.  It is illogical and inconsistent with prior precedent.  It therefore set a bad precedent and it is not encouraging to see states following it.  But it is what it is.  It is still the law of the land. 

I have not seen the new Michigan rule so I can't comment on it.  The one thing I do hope is that it, at least, applies to both plaintiffs and defendants' lawyers.  This was one of the main problems with the rule in question in Went for it.  Because of its wording, it only applied to plaintiffs' lawyers leaving victims vulnerable to personal visits by defendants' lawyers.  The rule simply did not advance the state interest in protecting the victims from intrusion.  This was a fatal flaw in the rule that the Court chose to ignore.  I hope the Michigan Court has not ignored this point.

Michigan Attorney Discipline Board finds flat fees are not earned upon agreement

Here is yet another comment on the character of flat fees.  I have commented on this issue several times before, most recently here. 

In this case (available here), the attorney and client agreed to a flat fee.  The attorney began to work on the matter but failed to follow through on it.  He then claimed that the fee had been earned on receipt.  The Board disagreed and stated that "Respondent's primary argument is that "there can be no unused [or unearned] portion of a 'flat fee' " This is simply erroneous as a matter of law. It would be absurd for the law to provide, as respondent argues, that " [t]he total fee was due (earned) the moment the attorney began any work on the file." This would enable an attorney to begin an agreed upon representation, abandon it, and retain the entire fee as if the whole of the work had been completed. For obvious reasons, this has never been the law..."

This is the logical result for the circumstances of the case.  Otherwise, as the Board correctly points out, attorneys would be free to disregard the client's matters and collect the fees anyway. 

Thanks to the Legal Profession blog for the information and link.

Lawyer’s License Revoked After Panel Finds He Hid Funds During His Divorce

Here is a good reminder of the fact that a lawyer's conduct outside the practice of law can result in professional discipline.  In this case, a lawyer’s license was revoked because he attempted to hide assest during his divorce.   Go here for the full story.

Interestingly, the attorney for the disciplined lawyer is quoted as saying that "the discipline is unusual because the facts related to the revocation are from a personal divorce, not mishandling a client's case. This had nothing to do with his performance as a lawyer."

Although he is correct in stating that the sanctions are not related to the lawyer's performance as a lawyer, he is wrong is claiming this is unusual.  It is pretty well known that a lawyer can be disciplined for conduct outside the practice of law, as long as the conduct in question relates to the lawyer's character or ability to practice law.  The conduct in this instance brings into question the lawyer's honesty, integrity and respect for the legal process.  Obviously, these are pretty relevant factors to consider when deciding whether a lawyer's conduct calls for discipline.

There may be an argument as to the severity of the sanction imposed, but that is a different matter.  I see no problem with the fact that a sanction was imposed.