Proper sanction for refusing to reimburse unearned fee?

The Legal Profession blog is reporting today on a case with an interesting set of facts:  An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case. The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.

Based on these facts, the Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance."  The court's order is available here.

I have no problem with the court's decision.  The conduct was unethical and the refund was provided too late.  My question is whether the sanction was adequate.  I have often posted comments about this.  What makes the conduct worth a one month suspension, as opposed to a two month suspension, for example?

I think a one month suspension is too lenient in this case, but I am not sure what would be appropriate.  What do you think?  I guess the way to find an answer is to research the law of the state to see if there are other similar cases.

I thought prosecutors have an obligation to behave ethically... silly me!

A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence.

I am sorry, but this is so absurd it is painful.  Granted, there is a difference between contempt and disciplinary action, but this "reasoning" is one of the dumbest things I have heard all year.  To say that clearly unethical conduct is not worthy of punishment because the court did not specifically tell the lawyers they needed to be ethical makes a mockery of the whole notion of professional responsibility! 

And people wonder why there is so much prosecutorial misconduct.  Here is the answer: because there is no accountability.  Judges need to understand that to minimize prosecutorial misconduct they need to start imposing liability (whether civil, criminal or disciplinary) for unethical conduct.

For more on this story see The New York Times, Jonathan Turley's blog, the Wall Street Journal's law blog and the Blog of the Legal Times.

Legal Zoom Sues North Carolina Bar - UPDATED

Last August I reported that Legal Zoom.com settled a class action filed in Missouri claiming that it was illegally practicing law in the state of Missouri.  Go here for more details.

Legal Zoom is now back in the news. The Wall Street Journal law blog is reporting that Legal Zoom has filed a lawsuit in North Carolina claiming the State Bar has accused Legal Zoom improperly of engaging in the unauthorized practice of law. The suit asks the court to declare that Legal Zoom is authorized to sell its self-help legal service on the Internet.  Go here for more information.

UPDATE: 11/28/11:  The Lincoln Tribune recently published a story on this case here.
Thanks to the Legal Ethics Forum for this link.

How not to practice law update

Here are the links to the "how not to practice law list" so far.  As you can see, these are examples of incredible but true stories of conduct that is so basic you'd think anyone would know that what they are doing is improper.  Nothing complicated here. In many of the cases, you can say the conduct is simply just plain stupid...  The list would be funny, if it weren't for the fact that it is a serious problem that there are so many lawyers out there getting in trouble for these kinds of things.... Each item is a link to its own post/story.

have sex with client, then charge her for your services

help your boyfriend escape from prison, wait a couple of hours, then post a photo of the two of you on Facebook

on appeal, prepare a lousy brief that does not support your arguments

beat up your client with a baseball bat

steal money from clients, then "in your defense" argue you needed the money

bring your recreational drugs to court, then drop them in front of police officer

post photos of your client's undies on Facebook and make fun of your client and his family in the process

do everything wrong when leaving your firm

video: how not to conduct a hearing (follow up on that story, here)

if you are a judge, preside over the bond hearing of the person accused of a crime against you

if you are a judge, let your clerks decide your cases while you are on vacation

misrepresent your assets in a bankruptcy application (even though you are wearing them in public)  (or hide your assets in a bankruptcy case)

don't pay taxes (particularly if you are a former IRS attorney and a tax lawyer)

don't take depositions seriously

if you are a judge, try to establish inappropriate personal relationship with attorney who appears before you

stop paying child support

use your client's money to pay gambling debts

pull a gun on a process server when he is trying to hand you some papers

lie during the disciplinary process to cover up your mistakes (more recently, here)

try to cheat on the bar exam

host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user

claim you forgot your client was your client in order to avoid correcting your client's perjured testimony during discovery

allow your client to be convicted even though he was in prison at the time of the crime

double bill the court

prepare a will for the client in which the client names you or your wife as the beneficiary

write incomprehensible complaints and briefs

slap the witness in the face during a deposition

bring drugs with you when you visit clients in prison

use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"

represent buyer and seller in a transaction, then represent one of them against the other after transaction is done

show the jury the evidence the judge had excluded

have your spouse lend money to client

don't pay attention to the details

inflate your bills

start to practice law before you are admitted to the bar

abuse your power as a prosecutor by offering leniency in exchange for sex with defendants or their mothers

don't pay your student loans

offer to help law students cheat

claim that everything is confidential

charge a fee for doing nothing

try to help your client by breaking the law

advertise you have "associates" when, in fact, you don't

tell the jury you think your client is guilty

pretend to be a doctor  (more recently here)

try to influence the judge

show up drunk, (same problem, more recently here)

have sex with clients while visiting them in prison (a similar, more recent case here)

sell the defendant's property

be a pimp

charge $3,500 an hour AND be rude to the judge

plagiarize

break the law and obstruct justice

tell your divorce client's wife you want to go out with her

have sex with client's wife

continue to practice during your suspension (same problem, more recently here)

make sure you tell the jury the information the judge had excluded

pay your employees "under the table"

ask client to pay fees with drugs (same, more recent case here)

insult the judge (preferably in writing)

write a bad brief

don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)

if you make a mistake, lie to cover it up

pay your bar dues with a check from your client's account

convince clients to give you title of their house so they avoid foreclosure, then get them evicted

let the client dictate (bad) strategy

ask client to pay fees with sex

park in the handicapped parking spot

lie

get married when you are already married (same problem, more recently here and here)

show up to court drunk

have affair with married woman, then agree to represent her husband in divorce

when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

try to recover expenses from your client after you agreed not to do it

provide the wrong citation to key cases so the judge goes nuts trying to find them

try to blackmail your opponents to get what you want

lie to the judge

take more work than you can handle

lie to the disciplinary committee

forge the judge's signature

ask for stolen property as payment for your services

rob a bank

be rude to the judge's clerk

don't proofread anything before you file it in court

Solicitation in the Penn State sex scandal

Eric Turkewitz comments (and he "names names") on attempts to find and solicit sex abuse victims here.

Be careful what you wish for

Here is an interesting recent case out of the Illinois Appellate Court.  In this case, a criminal defendant appealed his conviction - which was the result of a negotiated plea - arguing that he agreed to the deal based on his lawyer's bad legal advice.  According to the agreement, he received a sentence of 27 years in prison.  Only problem is that, because of the circumstances of the case, the mandatory minimum sentence should have been 25 years more.  So the court of appeals grants his request to set aside the conviction and remands the case to allow the defendant to withdraw the plea "and proceed to trial if he so chooses" only now he is facing, at a minimum, about twice the sentence.  So he got what he wanted but now he is much worse off.

So what happened here?  I don't know why or how the negotiated plea was obtained.  Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law.  And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law?  Or, again, was it a case where the lawyer simply did not know the law?  And then there's defendant's counsel on appeal.  Why would he recommend to appeal a sentence when the result could ONLY be worse for the client?  Did he inform the client of this and let the client decide or did the lawyer not realize it?  The case is called People v McRae and it is available here.

Interestingly, this is not the first time I've heard of something like this.  Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.

So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.

The rest of the decision in McRae is also interesting.  The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail."  In the letter, the defendant essentially confessed to committing the crime.  Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal.  On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it.  Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.

Prosecutor's book contract results in reversal of conviction and more

Model Rule 1.8(d) states that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."  Most jurisdictions probably have a similar rule, the purpose of which, obviously, is to make sure an attorney is not distracted by his or her personal interest in making money off the future book or movie.  It is a pretty simple rule and I don't remember having seen too many cases about it.

In one of those rare cases, the Legal Profession blog is reporting today that the Indiana Court of Appeals has reversed a murder conviction in a case where the prosecutor had entered into a (now cancelled) literary contract for a book.  The case is Camm v Indiana and it is available here.  For more on the case, go to the Legal Profession blog here.

LSC's funding to be cut, probably by 14%

The Chicago Daily Law Bulletin is reporting that the Legal Services Corp. (LSC), which awards grants to legal aid providers throughout the nation, could see its funding slashed by nearly 14 percent in fiscal year 2012.  There are three legal aid providers in Illinois that rely heavily on federal funding to provide legal assistance to those in need: Land of Lincoln Legal Assistance Foundation, Legal Assistance Foundation of Metropolitan Chicago and Prairie State Legal Services Inc.  The cuts in funding will likely result in cuts in staff and fewer services at a time when there are more poor people and more need for those services.

Please consider giving generously to agencies providing legal aid when choosing charities to contribute to this coming holiday season (or at any other time in the future).

UPDATE:  Public Citizen has more information here, including a link to the 2012 budget deal.

Supreme Court to hear case on possible attorney immunity

The Supreme Court has announced its schedule for oral arguments during the month of January and it includes a case on the law of lawyering and torts. The case is called Filarsky v. Delia is about there private lawyers should have the benefit of immunity for the consequences of their conduct while working temporarily for the government. I have mentioned the case before here. For more information and links to all the relevant documents, including the lower court's opinion and the parties' briefs go here.

Yet another case of possible prosecutorial misconduct for not disclosing exculpatory evidence; this one from Texas

I have been following the case before the Supreme Court on prosecutorial misconduct for failing to disclose exculpatory evidence (see here, here and here), and I have commented on the relationship between that case and last year's case Connick v Thompson in which the exonerated man sued the DAs office seeking compensation. (for more on that one type Connick in the "search this blog" box on the right under my photo which will take you a a lot of links on the case.)

Today, in yet another case of a defendant getting exonerated after spending a long time in prison (two decades in this case), the Legal Ethics Forum is reporting that the prosecution is going to have to answer some very hard questions about the prosecutor's fulfillment of his duty to disclose.  For more go here.