Supreme Court November oral argument schedule

The Supreme Court has issued its schedule for the first oral arguments of the year and there are three cases related to the "law lawyering" including the two very first ones scheduled:

On Monday, Oct 31 the court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444).  Both cases are about claims of ineffective assistance of counsel based on advice to reject a plea offer and either plead guilty or go to trial.

Also, on what seems to be a trend of cases related to prosecutorial misconduct before the Court in the last couple of terms., on Tuesday, Nov. 8, the Court will hear Smith v. Cain (10-8145) which addresses the impact of a prosecutors’ failure to disclose evidence favorable to the accused’s defense on the verdict in a criminal trial.  

As usual, for more details and information on these (and any other Supreme Court case), including links to the briefs, lower court opinions, and other documents, go to the SCOTUS case files page (here).

Court of Appeals finds no ineffective assistance of counsel even though attorney fell asleep while defendant was under cross-examination -- UPDATED

Yesterday, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination.  The case is called  Muniz v. Smith (although I suspect it should be Muñiz) and it is available here.   The court held that a courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial.  The case has generated a good debate here. 

UPDATE 8/4/11:  Lowering the Bar has more on the story here.

Iowa to consider whether sanctions in discipline matters should be kept confidential

The Wall Street Journal law blog is reporting that at the end of this month, the Iowa Supreme Court will consider a proposal that would allow lawyers who face discipline for stealing from clients and neglecting client matters to prevent their sanctions from being disclosed publicly. In exchange for this confidentiality, though, lawyers would have to agree to cooperate in expediting the suspension of their law licenses.  Go here for the full story.

I have mixed feelings about this.  On the one hand, offering confidentiality will expedite the process and, hopefully, make it more efficient.  That is a good thing.  But on the other hand, secrecy may eliminate, or at least limit, the goal of deterrence.  Also, it limits the amount of information available to the public when searching for representation.

How not to practice law in Australia

Here is a link to an intereting story in the Australian Professional Liability blog about a firm who sued a former client's wife to get her to pay the client's bills and, after obtaining default judgment against her, set out to, literally, take everything she owned.  The wife did not answer the lawsuit because she was unaware the law protected her apparently, and eventually the court ruled in her favor.  Go here for the full story, which does not end well for the lawfirm.

Revisions to the rules proposed in California - Updated

The California State Bar Association has submitted to the Supreme Court 67 proposed new Rules of Professional Conduct.  California is currently the only state whose professional conduct rules are not adapted from the ABA Model Rules, and the new proposals suggest a reorganization and renumbering to align California rules with the Model Rules. The new rules can not take effect unless they are approved by the Supreme Court.  Some of the proposals have been submitted to the court; others will be submitted in the future.  The full text of the proposal is available here.  (Thanks to the Legal Profession Blog for the update.)

UPDATE 8/3/11:  More on the story at the Legal Ethics Forum.

How not to practice law: show up to court drunk, again

The title says it all.  Unfortunately, this is one I have reported on before - at least three times (here, and here, which includes links to a video).

Class Action Claims Online Legal Forms (like "Legal Zoom") Pose Threat To Consumers.

A few days ago, The Wall Street Journal law blog posted (here) that a case I reported about back in February of 2010 (here where you can find a copy of the complaint and more links) is now set for trial on August 22.  The case involves a class action filed in Missouri claiming that LegalZoom.com, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri. 

This is not a new issue.  In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is here. LegalZoom's response is available here.

How not to practice law: use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"

In a recent decision called Grievance Administrator v. Trott (available here), the State of Michigan Disciplinary Board disbarred an attorney for mishandling client's funds.  Among other things, the attorney used money from his client's trust account to pay personal expenses at stores and to pay for his utility bills. 

It is not unusual for attorneys caught commingling and misappropriating money to claim the misconduct is due to carelessness rather than intent and to claim the problem is in their "poor bookkeeping", which, of course, they promise to improve in the future. 

The court in this case, suggested the attorney had the good sense not to make that stupid claim and added that

"[a]ttempts to blame misuse of client funds on poor bookkeeping practices seldom make any sense. With respect to the handling of trust funds, "poor bookkeeping" is often actually a refusal to assign priority to the lawyer's role as a fiduciary. The public is asked to trust lawyers with their confidences, their liberty, and their fortunes. The public is also asked to trust lawyers as repositories of funds. The duty to keep client and third party funds safe and separate from lawyer funds is a fundamental one."

For more on this case go to the Legal Profession blog here.

It does not look like there will be changes to Rule 11 after all

The Legal Ethics Forum is reporting that the effort to restore the older, tougher version of Rule 11 I wrote about here has fared well in the House but looks doubtful in the Senate.  Go here to read the comments on the issue by some of the readers of the Forum.

Roger Clemens' lawyers ask for dismissal due to prosecutorial misconduct

A few days ago, I posted (here) that the prosecution in the trial against former baseball pitcher Roger Clemens engaged in misconduct by using certain evidence the judge had excluded.  Now comes news the Clemens' lawyers have asked the court to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished.  Go here for the full story.