About two weeks ago I commented on the report by the special prosecutor looking into the misconduct by the prosecutors in the Ted Stevens case. See here. Just a few hours ago, I commented on an op-ed piece on the need for more accountability for prosecutorial misconduct (here). Here is a story that combines both of those themes.
Today there is a new related story about the Ted Stevens case. But before I tell you that story, I have to give you a little background. Back in February 2009, U.S. District Judge Emmet Sullivan declared several prosecutors in contempt for violating a court order to turn over documents to Stevens’ defense team. However, the judge did not impose sanctions, saying he would address sanctions at a later date. The prosecutors disclosed the information hours after they were held in contempt, but the judge did not lift the contempt finding until October 2010, more than a year later, when he declined to impose sanctions against the prosecutors.
The prosecutors, challenged the contempt order arguing that it was a criminal contempt order, which they apparently argued marred their professional careers and could impede their ability to practice in federal trial courts around the country. They wanted the contempt order reversed because, according to their argument, it was issued without procedural protections required by the rules of criminal procedure. Such a finding would have eliminated the "conviction" but would not have necessarily negated the nature of the conduct that resulted in the imposition of contempt.
The challenge to the contempt order has now been decided by the U.S. Court of Appeals for the D.C. Circuit which held that the contempt order was civil, not criminal. In doing so, thus, the court found the lower court did not err in holding the prosecutors in contempt, but at the same time apparently cleared them of the possible interpretation that they engaged in misconduct. The decision is available here.
In the end, however, this whole thing is becoming a comedy of errors - and when I say "comedy" I mean exactly the opposite. First of all, there is the conduct of at least some of the prosecutors to begin with. Second, there's the judge's handling of the order. He should have imposed sanctions immediately. There was no reason to wait more than a year to decide whether to impose sanctions or to wait more than a year to not impose sanctions.
Third, there is the finding of the court now saying the order was really civil in nature. What's the problem with that? It has the effect of saying that the prosecutors' conduct was not worthy of criminal contempt, letting them off the hook.
In the end, by having the court reject their argument, the prosecutors got a better result than the one they apparently had asked for. The fact is that, at least so far, nothing has marred the careers of any of the prosecutors involved in the case and there is really no reason to expect that anything will. For more on that topic go here.
For more on this story go to the Blog of the Legal Times and the Wall Street Journal Law Blog.
Saturday, December 10, 2011
Friday, December 9, 2011
Op-ed asks for prosecutorial accountability
Last month I posted a note (here) about a new short article in the Yale Law Journal Online on prosecutorial accountability. The article is called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct and it is available here.
Today, one of the authors of the article published an Op-ed piece in the National Law Journal calling for more accountability for prosecutors. It is available here. It states that "research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs."
I have been saying this for a long time, of course, so I am glad the problem is finally getting more attention. Long time readers of this blog might remember that I called 2009 the year of prosecutorial misconduct because there were so many high profile cases reported. Also, if you look at the number of posts by topic (on the right side panel) of this blog you will see that the "prosecutors" category has one of the highest totals. Obviously, not all of the cases reported there involve intentional misconduct, but many do and more often than not my comments end with me complaining that courts and disciplinary agencies do not do enough to discourage misconduct among prosecutors. For the most recent example, go here.
Today, one of the authors of the article published an Op-ed piece in the National Law Journal calling for more accountability for prosecutors. It is available here. It states that "research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs."
I have been saying this for a long time, of course, so I am glad the problem is finally getting more attention. Long time readers of this blog might remember that I called 2009 the year of prosecutorial misconduct because there were so many high profile cases reported. Also, if you look at the number of posts by topic (on the right side panel) of this blog you will see that the "prosecutors" category has one of the highest totals. Obviously, not all of the cases reported there involve intentional misconduct, but many do and more often than not my comments end with me complaining that courts and disciplinary agencies do not do enough to discourage misconduct among prosecutors. For the most recent example, go here.
Wednesday, December 7, 2011
Illinois Disciplinary board granted authority to investigate, prosecute unauthorized practice of law
Illinois Lawyer Now is reporting that, earlier this week, the Illinois Supreme Court granted the Attorney Registration and Disciplinary Commission (ARDC) the authority to investigate and prosecute the unauthorized practice of law.
I have to say I found this surprising in the sense that I thought the ARDC already had that authority. The ARDC is the disciplinary agency in the state and given that unauthorized practice of law is an ethical violation, you would think that it has the authority to deal with such cases. Well, apparently, it didn't, but now it does.
But maybe I should not be surprised. A couple of years ago, I posted a comment about a case that interpreted the notion of illegal practice of law in Illinois which I found odd. I promised myself I would do some research on the question, but never got around to it. Maybe now I will....
That case from two years ago was People v Harris, in which the Court of Appeals affirmed a conviction of a law school graduate who was not admitted to practice in Illinois for "false personation of an attorney."
Here is what I wrote back then:
The applicable statute in the case reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”
The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."
This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.
Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?
After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.
The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.
Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.
The opinion is available here.
I have to say I found this surprising in the sense that I thought the ARDC already had that authority. The ARDC is the disciplinary agency in the state and given that unauthorized practice of law is an ethical violation, you would think that it has the authority to deal with such cases. Well, apparently, it didn't, but now it does.
But maybe I should not be surprised. A couple of years ago, I posted a comment about a case that interpreted the notion of illegal practice of law in Illinois which I found odd. I promised myself I would do some research on the question, but never got around to it. Maybe now I will....
That case from two years ago was People v Harris, in which the Court of Appeals affirmed a conviction of a law school graduate who was not admitted to practice in Illinois for "false personation of an attorney."
Here is what I wrote back then:
The applicable statute in the case reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”
The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."
This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.
Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?
After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.
The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.
Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.
The opinion is available here.
ABA Commission on Ethics 20/20 Releases Rule 5.4 Draft
The ABA Commission on Ethics 20/20 has released a discussion draft of a possible proposal to amend Model Rule 5.4, which, if adopted, would allow for very limited forms of nonlawyer ownership in law firms. The Commission is seeking feedback in order to determine whether it should make such a proposal. The proposal can be found here.
The Commission encourages responses by late January 2011, so that they can be discussed at the Commission's February 2-3, 2012 meeting, and further asks that those requiring additional time submit comments by February 29, 2012. Comments should be submitted to Senior Research Paralegal, Natalia Vera, natalia.vera@americanbar.org.
For more on the story go to the Legal Ethics Forum and the Wall Street Journal Law Blog.
Some time ago, I posted a note about a bill in North Carolina on the same issue with a link to a comment that concluded this is a lousy idea (here).
The Commission encourages responses by late January 2011, so that they can be discussed at the Commission's February 2-3, 2012 meeting, and further asks that those requiring additional time submit comments by February 29, 2012. Comments should be submitted to Senior Research Paralegal, Natalia Vera, natalia.vera@americanbar.org.
For more on the story go to the Legal Ethics Forum and the Wall Street Journal Law Blog.
Some time ago, I posted a note about a bill in North Carolina on the same issue with a link to a comment that concluded this is a lousy idea (here).
Monday, December 5, 2011
Not one of the top blogs
Once again, my blogs did NOT make it into the list of the "best" law blogs. What's the matter with you people?! Don't you like me? C'mon... I am getting discouraged here!!! I guess I need to get organized and start a campaign much sooner next year... Is it that my blogs don't have "catchy" titles? Then help me come up with a better one...
All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam.... Decide for yourself after you read his post here.
Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.
All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam.... Decide for yourself after you read his post here.
Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.
Thursday, December 1, 2011
Proper role of the judge or abuse of discretion?
I have commented in the past on the controversy related to whether judges abuse their discretion when they impose unusual (some would say creative) forms of punishment. For example, recall the stories on judges ordering defendants to go to church, to sing a song, or to suffer public humiliation.
Now comes news that a judge in Florida told a defendant she would reduce the defendant's sentence one day for every pound of weight he lost. The defendant reportedly weighed 345 pounds at the time. He lost 25 pounds in 20 days and received early release. Professor Jonathan Turley, who criticized judicial use of humiliation as abuse of discretion in the past (here), has also commented on this new case. Go here for his comments.
Now comes news that a judge in Florida told a defendant she would reduce the defendant's sentence one day for every pound of weight he lost. The defendant reportedly weighed 345 pounds at the time. He lost 25 pounds in 20 days and received early release. Professor Jonathan Turley, who criticized judicial use of humiliation as abuse of discretion in the past (here), has also commented on this new case. Go here for his comments.
California Supreme Court will hear disgraced journalist’s moral character case
Stephen Glass was once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital, producing knockout articles for magazines ranging from The New Republic to Rolling Stone.” It was later discovered, however, that many of his articles were completely fabricated and he was exposed as a fraud.
Glass wrote some of the false articles while attending Georgetown law school. He graduated and passed the bar exams in New York and California. However, he has not been admitted to practice in either state. According to the California Bar Journal, he withdrew his application in New York after learning his admission would likely be denied, and his application in California was, in fact, denied by the Committee of Bar Examiners (CBE).
This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.
This is the first time in 11 years that the California Supreme Court has agreed to hear a case of a candidate denied admission to the State Bar because of moral character issues.
The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation."
This is an interesting case, and a close call. On the one hand, there should be no doubt that the conduct would have been sufficient to get Glass disciplined if he had engaged in it while he was a lawyer. And, given the fact that he engaged in the conduct while he was a law student, I think there is plenty of support for the argument that Glass lacks the character expected of a member of the profession. For a similar case, see In re Lamberis, 443 N.E.2d 549 (Ill. 1982), a case in which the lawyer was disciplined for engaging in plagiarism. One interesting aspect of that case is the wide range of sanctions considered by the those evaluating the conduct.
On the other hand, Glass has argued that the conduct is now in his past, that he has learned his lesson and that he has been rehabilitated. And this is the key. What kind of evidence of "rehabilitation" should be require to defeat the notion that past misconduct can be used to predict future conduct?
That is a tough question indeed. Do you believe that people "can change"? How much do you trust people when they say "I won't do it again" - whatever that "it" is?
According to reports, Glass apparently has the support of some of the editors of the publications he lied to in the past, but the CBE contends that Glass' actions do not support his allegations arguing that Glass made misrepresentations to the New York bar when trying to win admission there.
I find this last allegation very troubling. How can we really trust a candidate who says we should be confident we can trust him if it is true he has lied in an attempt to get admitted? If I were voting on this case, and the CBE proved the allegation that the candidate made misrepresentations in the bar application in NY, I would vote against admission.
No date has been set for oral argument at the Supreme Court, so stay tuned.
Glass wrote some of the false articles while attending Georgetown law school. He graduated and passed the bar exams in New York and California. However, he has not been admitted to practice in either state. According to the California Bar Journal, he withdrew his application in New York after learning his admission would likely be denied, and his application in California was, in fact, denied by the Committee of Bar Examiners (CBE).
This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.
This is the first time in 11 years that the California Supreme Court has agreed to hear a case of a candidate denied admission to the State Bar because of moral character issues.
The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation."
This is an interesting case, and a close call. On the one hand, there should be no doubt that the conduct would have been sufficient to get Glass disciplined if he had engaged in it while he was a lawyer. And, given the fact that he engaged in the conduct while he was a law student, I think there is plenty of support for the argument that Glass lacks the character expected of a member of the profession. For a similar case, see In re Lamberis, 443 N.E.2d 549 (Ill. 1982), a case in which the lawyer was disciplined for engaging in plagiarism. One interesting aspect of that case is the wide range of sanctions considered by the those evaluating the conduct.
On the other hand, Glass has argued that the conduct is now in his past, that he has learned his lesson and that he has been rehabilitated. And this is the key. What kind of evidence of "rehabilitation" should be require to defeat the notion that past misconduct can be used to predict future conduct?
That is a tough question indeed. Do you believe that people "can change"? How much do you trust people when they say "I won't do it again" - whatever that "it" is?
According to reports, Glass apparently has the support of some of the editors of the publications he lied to in the past, but the CBE contends that Glass' actions do not support his allegations arguing that Glass made misrepresentations to the New York bar when trying to win admission there.
I find this last allegation very troubling. How can we really trust a candidate who says we should be confident we can trust him if it is true he has lied in an attempt to get admitted? If I were voting on this case, and the CBE proved the allegation that the candidate made misrepresentations in the bar application in NY, I would vote against admission.
No date has been set for oral argument at the Supreme Court, so stay tuned.
Tuesday, November 29, 2011
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.
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.
Monday, November 28, 2011
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.
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.
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.
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