Contingency fees based on what you can save the client - "reverse contingency"?

You are representing a client in a contract dispute where the opposing party claims he is owed $10,000 for services rendered. The client likely will not be able to pay your hourly rate to handle the matter. Can you enter into a “reverse contingent fee” agreement whereby you will be entitled to a percentage of the money that you save the client?  ETHICSearch has published a short article explaining why the answer is yes, as long as the fee is reasonable, of course.

Ted Stevens report has immediate effect: bill to change discovery obligations

Lawmakers filed a new bill Thursday that would change discovery rules in federal criminal cases, requiring prosecutors to turn over any information that would be favorable to the defense as soon as possible – or face sanctions.  Go here for the full story.

Big news of the day: The report on prosecutorial misconduct in the Ted Stevens case has been released, finally!

The long awaited and controversial report on prosecutorial misconduct in the Ted Stevens case has finally been realeased. The 500+ page report is available here.  The Justice Department hasn't yet published its internal review of the case, but it has issued a press release available here (thanks to the Legal Ethics blog for that link!).  For more on the latest news on the report, go to the Blog of the Legal Times (here, here, here and here) and the Wall Street Journal law blog.  For more on the background story involving the Ted Stevens case go here, here, here, here, here and here.

Indiana State Bar Association Opinion: Attorneys should Not Use Group Coupon Programs

Unlike other states that have addressed the issue, the Indiana bar has issued an ethics opinion (Ethics Op. No. 1 of 2012) which concludes that using "groupon" or other similar group coupon or daily deal arrangements to market legal services is probably unethical.

The opinion states that using these programs may violate a number of Indiana rules of professional conduct including rules 2.1, 1.15, 1.16, 5.4 and 7.2 because the programs would allow someone other than the attorney to hold client funds or create conflicts of interests or allow the sharing fees for referring clients.

The full text of the opinion is available here.

In contrast, ethics opinions in other states have found that is not unethical for lawyers to participate in group coupon programs.  For example, see New York State Ethics Op. 897, North Carolina Ethics Op. 2011-10, and South Carolina Ethics Op. 11-05.

Debate on judicial recusal at the Supreme Court

The University of Pennsylvania Law Review sponsors a website called PENNumbra which hosts debates on important topics.  The debates usually involve two authors.  Each one writes an opening statement, a reply to the other's opening statement and a closing statement.  Today the debate is on whether the Supreme Court should adopt rules or guidelines to regulate recusal by the justices.  The first opening statement is now available here.  Check the website for the future installments.

Should state guarantee counsel for indigent parents in abuse and neglect proceedings?

For decades poor parents in New Hampshire were provided lawyers if they could not afford them, but funding was cut during the last legislative session.  The issue is now before the state's supreme court and the First Amendment Center is reporting today that the oral arguments on whether indigent parents have a right to court-appointed counsel in abuse and neglect proceedings will be open to the public.  Unfortunately, I don't have the name of the case or any more information.

Update on the debate on whether states should allow fee sharing with non-lawyers and investments by non-lawyers in law firms

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed.  The opinion is available here.  In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss.  The opinion in that case is available here.  The Wall Street Journal law blog has more information. 

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers.  Go here for more information.

IL court of appeals issues two opinions on ineffective assistance of counsel

Earlier today, the Illinois court of appeals issued two opinions on ineffective assistance of counsel.  In the first one, People v. Watson, the court reversed the defendant's conviction for residential burglary because the defendant’s trial counsel was ineffective in failing to cross-examine the State’s DNA expert or present evidence that the partial profile should be considered a “nonmatch,” failing to present expert testimony that the statistical calculations relied on by the State were flawed, and failing to understand the DNA evidence or ensure that it was properly explained to the jury.  Interestingly, (and sadly) the court also noted that the defendant's posttrial counsel was also ineffective in only filing a notice of appeal without filing any postsentencing motions.  The court remanded for a new trial with new counsel.

In the second case, People v. Remsik-Miller, the defendant was convicted and sentenced to 22 years in prison.The defendant then filed and argued a post conviction motion pro se in which she argued that her attorney "did not represent her to his fullestability during [her] trial.”  The motion was denied, but the court of appeals remanded. The court decided that before deciding the motion it would have to be determined  whether defendant’s comment —that defense counsel did not represent her “to his fullest ability during [her] trial”—amounted to an allegation of ineffective assistance of counsel which would have triggered the lower court’s duty to inquire.  For this reason, the court of appeals remanded "for the limited purpose of allowing the trial court to conduct the necessary preliminary examination as to the factual basis of defendant’s allegation."

Holder lets us know what we already knew

It has not been a good month for Eric Holder, the Attorney General of the US.  First it was his ludicrous speech about the President's authority to order extrajudicial killings without due process - about which I and others have commented here, here, here and here.  Then there was the story about the attempt to hide the identity of a prosecutor who engaged in misconduct and the scathing response by the court criticizing the Dept of Justice (see here), and now it is his testimony regarding the report on prosecutorial misconduct during the Ted Stevens case.

The Blog of the Legal Times is reporting (here) that Holder testified "on Capitol Hill that the Ted Stevens report on prosecutorial misconduct contains "disturbing" findings against Justice Department lawyers."  Duh! Given that the court-appointed investigator found back in November 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, Mr Holder's statement is quite an understatement.  Tell us something we did not know already.  For more on the background story involving the Ted Stevens case go here, here, here, here and here.

The real question is how widespread prosecutorial misconduct is and whether it is true, as some have claimed, that Holder's administration is knowingly turning a blind eye to it.  On this question, take a look at the comments under the report in the BLT.

NYT editorial criticizes Obama administration policy on extrajudicial killing

I have been following the critical reaction to the very problematic argument that the Obama administration has inherent (and pretty much absolute) power to order extrajudicial killings.  See here, here and here. 

Today, the New York Times added its voice to the debate.  It criticizes Obama's position in an editorial that starts by stating that "President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability."  Go here to read the full text.