Monday, February 13, 2012
Durham County- North Carolina DA removed for prosecutorial misconduct
Prof. Jonathan Turley is reporting today that Durham County District Attorney Tracey Cline, has been removed for serious allegations of prosecutorial misconduct — something of a pattern for that office it seems. Interestingly, Cline is the successor to Mike Nifong who was disbarred for his misconduct during the infamous Duke lacrosse team case a few years ago.
Thursday, February 9, 2012
How not to practice law: use your client's money to pay gambling debts
In a new case from New Jersey, the state Supreme Court has disbarred an attorney for misappropriation which included the use of money from a clients' trust account to pay gambling debts. Obviously, using clients' money for personal purposes is one of the worst and dumbest things a lawyer can do, and, as we know it typically leads to disbarment.
However, since gambling can be an addiction, I am not ready to pass judgment on this particular case. If jurisdictions have established programs for lawyers addicted to alcohol and drugs, should they also provide help to gambling lawyers who have lost control of their extracurricular activities?
Go here for more information.
However, since gambling can be an addiction, I am not ready to pass judgment on this particular case. If jurisdictions have established programs for lawyers addicted to alcohol and drugs, should they also provide help to gambling lawyers who have lost control of their extracurricular activities?
Go here for more information.
How not to practice law: pull a gun on a process server when he is trying to hand you some papers
An Illinos Hearing Board has recommended a 60-day suspension of a former elected State's Attorney who was convicted of the aggravated assault of a licensed private detective. He had pulled a gun on the victim in the court parking lot when an attempt was made to serve him with process. The process involved a suit filed against him by his former secretary. For more on the story, go to the Legal Profession blog and the Jonathan Turley blog.
Judge orders release of report on prosecutorial misconduct in the Ted Stevens case - UPDATED
How about that!? Last night I wrote about an article in the NY Times calling for the release of the report on prosecutorial misconduct in the Ted Stevens case (here) and this morning the Blog of the Legal Times is reporting (here) that the judge has just ordered its release.
The Wall Street Journal also has the story here.
UPDATE 2/9/12: The First Amendment Center has more on the story here.
The Wall Street Journal also has the story here.
UPDATE 2/9/12: The First Amendment Center has more on the story here.
Tuesday, February 7, 2012
NY Times calls for the release of the report on prosecutorial misconduct in the Ted Stevens case
Toward the end of last year, I posted several comments on the reports on prosecutorial misconduct in the Ted Stevens case. Go here and here for more on that. Part of the story back then was that a judge found evidence of widespread and intentional concealment of evidence on the part of the prosecutors.
However, the judge has not released his report yet and today the New York Times published a short editorial asking for its release and criticizing the Justice Department for not calling for its release.
Go here to read the editorial.
However, the judge has not released his report yet and today the New York Times published a short editorial asking for its release and criticizing the Justice Department for not calling for its release.
Go here to read the editorial.
DC considers new rule to allow disclosure to remedy wrongful conviction
The District of Columbia Bar is considering enacting a new rule (designated as Rule 8.6) to require lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to the court, unless the information is protected by the duty of confidentiality. The rule expresses good intentions, but because it is not crafted as an exception to the duty of confidentiality, I am afraid it will prove to be of minimal value.
It is interesting to note that the ABA Model Rules impose a duty on prosecutors to disclose information that suggests a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted (Model Rule 3.8(g)), but DC has not yet adopted this section of the rule and the proposal for DC Rule 8.6 makes the point that if there is going to be a duty to disclose this type of information it should apply to all lawyers, not just to prosecutors.
DC's proposal is an approach to the issues raised a few years ago by the Alton Logan incident, made famous by a 60 minutes segment (available here). As you probably remember, in that case two lawyers were told by one of their clients that he (the client) was guilty of the crime for which Mr. Logan was being tried separately. The lawyers tried to get their client to allow them to disclose the information but he did not consent. Eventually, the lawyers convinced the client to allow them to disclose the information after the client's death. He agreed to that, and then proceeded to live for 26 more years which Mr. Logan spent in prison for a crime he did not commit.
Shortly after the former client's death, the attorneys disclosed the information and Mr. Logan was released.
Partly in response to this incident, the Ethics Committee of the ABA’s Criminal Justice Section ("CJS") prepared a proposal to amend Model Rule 1.6 to recognize a new exception to the duty of confidentiality which would have allowed an attorney to disclose confidential information about a deceased client that the lawyer believed necessary to prevent or rectify a wrongful conviction. However, the proposal received little support.
A second proposal was then drafted to amend paragraph six of the comment to Model Rule 1.6 to limit the new proposed discretionary disclosure even more by allowing it only in cases where an individual was sentenced to death for a crime that he did not commit and to explain the discretion should be exercised very rarely. This second proposal was also rejected.
The proposal in DC is fundamentally different because it is actually not an exception to the duty of confidentiality. Proposed section 8.6(b) seems to say that if the attorney has a duty to keep the information confidential, then the attorney has to abide by that duty. Interpreted this way, the new rule really would not provide a solution to the dilemma in a case like Alton Logan's. As it is written, the rule would only apply to a lawyer who obtains the relevant information in a way that is not covered by the duty of confidentiality and it is hard to imagine how that would be the case.
Here is a link to the current text of the proposal.
It is interesting to note that the ABA Model Rules impose a duty on prosecutors to disclose information that suggests a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted (Model Rule 3.8(g)), but DC has not yet adopted this section of the rule and the proposal for DC Rule 8.6 makes the point that if there is going to be a duty to disclose this type of information it should apply to all lawyers, not just to prosecutors.
DC's proposal is an approach to the issues raised a few years ago by the Alton Logan incident, made famous by a 60 minutes segment (available here). As you probably remember, in that case two lawyers were told by one of their clients that he (the client) was guilty of the crime for which Mr. Logan was being tried separately. The lawyers tried to get their client to allow them to disclose the information but he did not consent. Eventually, the lawyers convinced the client to allow them to disclose the information after the client's death. He agreed to that, and then proceeded to live for 26 more years which Mr. Logan spent in prison for a crime he did not commit.
Shortly after the former client's death, the attorneys disclosed the information and Mr. Logan was released.
Partly in response to this incident, the Ethics Committee of the ABA’s Criminal Justice Section ("CJS") prepared a proposal to amend Model Rule 1.6 to recognize a new exception to the duty of confidentiality which would have allowed an attorney to disclose confidential information about a deceased client that the lawyer believed necessary to prevent or rectify a wrongful conviction. However, the proposal received little support.
A second proposal was then drafted to amend paragraph six of the comment to Model Rule 1.6 to limit the new proposed discretionary disclosure even more by allowing it only in cases where an individual was sentenced to death for a crime that he did not commit and to explain the discretion should be exercised very rarely. This second proposal was also rejected.
The proposal in DC is fundamentally different because it is actually not an exception to the duty of confidentiality. Proposed section 8.6(b) seems to say that if the attorney has a duty to keep the information confidential, then the attorney has to abide by that duty. Interpreted this way, the new rule really would not provide a solution to the dilemma in a case like Alton Logan's. As it is written, the rule would only apply to a lawyer who obtains the relevant information in a way that is not covered by the duty of confidentiality and it is hard to imagine how that would be the case.
Here is a link to the current text of the proposal.
Friday, February 3, 2012
Five myths about pro bono
Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has published a short article called Five Myths about Pro Bono in which she discusses, well, five myths about pro bono. It is available here.
Thursday, February 2, 2012
Defendant's referral service... or a conflict?
Here is an interesting story from the Baltimore Sun about a hospital that apparently has an agreement with a number of lawyers in the area to whom it refers cases when the hospital feels they might be sued for negligence. What's strange about this? That the person they are referring to the lawyer is the possible plaintiff. As described in the article, "several medical systems — including MedStar Health, LifeBridge Health and the University of Maryland Medical System, which collectively run about two dozen hospitals — keep lists of vetted lawyers who will accept patient cases for lower fees, often with the expectation that claims will be settled quickly."
On the one hand, I don't necessarily see something wrong in a person recommending a lawyer to another who will eventually be their adversary. Lawyers who practice in a particular area of law get to litigate against each other repeatedly, get to know each other, might develop good working relationships based on respect etc.
But this usually takes place informally and it involves individuals. What the article is describing seems to be quite different. It sounds like a system based on a preconceived agreement with the hospital. It sounds like the hospital will refer possible plaintiffs to lawyers who have agreed with the hospital to help the hospital get the matter resolved quickly. Looked at this way, it sounds very problematic. There is the risk that lawyers on the referral lists (because they want to get more cases referred to them) may not want to push for the best deal for the patients.
On the one hand, I don't necessarily see something wrong in a person recommending a lawyer to another who will eventually be their adversary. Lawyers who practice in a particular area of law get to litigate against each other repeatedly, get to know each other, might develop good working relationships based on respect etc.
But this usually takes place informally and it involves individuals. What the article is describing seems to be quite different. It sounds like a system based on a preconceived agreement with the hospital. It sounds like the hospital will refer possible plaintiffs to lawyers who have agreed with the hospital to help the hospital get the matter resolved quickly. Looked at this way, it sounds very problematic. There is the risk that lawyers on the referral lists (because they want to get more cases referred to them) may not want to push for the best deal for the patients.
How not to practice law: pretend to be a doctor
About a year ago, I reported on an unusual case where a lawyer tried to offer an expert opinion as a doctor in one of his cases. Today, the Legal Profession blog is reporting on a case in which an attorney got a two year suspension for falsely claiming to be a doctor. The case is In re Susan Friery and the order of the court is available here.
Practicing law before passing the bar or appearing pro-se?
The other day, I posted a note about whether a suspended lawyer can represent others in a setting where private individuals are allowed to do it (here). Now comes this short transcript of an actual proceeding from "On the record in Cook County" which is a blog that provides humorous transcripts from proceedings in Cook County courts. Today's entry is as follows:
Judge: Did you write this motion yourself, or do you have counsel present?
Defendant: Yes, I was aided by counsel who is here.
Judge: Counsel, would you care to stand up and tell me about this motion?
(no response for 20 seconds)
Judge: Counsel? Are you a lawyer?
Counsel: Well, I haven't passed the bar your honor.
Judge: Motion is denied.
Judge: Did you write this motion yourself, or do you have counsel present?
Defendant: Yes, I was aided by counsel who is here.
Judge: Counsel, would you care to stand up and tell me about this motion?
(no response for 20 seconds)
Judge: Counsel? Are you a lawyer?
Counsel: Well, I haven't passed the bar your honor.
Judge: Motion is denied.
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