The most recent episode of the show "Community" was this parody of Law & Order:
Sunday, April 29, 2012
Friday, April 27, 2012
Circuit split over applicability of attorney-client privilege to patent agents
The blog "Circuit Splits" has a post on the debate over the applicability of the attorney-client privilege to patent agents here.
Prosecutorial ethics in the news
As I get ready to discuss prosecutorial ethics next week, there are two items in this week's news on the subject:
The Blog of the Legal Times is reporting on a case in which alleged Brady violations reopen 27-year-old homicide case.
The National Law Journal has an editorial urging the Supreme Court to grant review in a case that alleges prosecutorial and judicial misconduct.
The Blog of the Legal Times is reporting on a case in which alleged Brady violations reopen 27-year-old homicide case.
The National Law Journal has an editorial urging the Supreme Court to grant review in a case that alleges prosecutorial and judicial misconduct.
Wednesday, April 25, 2012
What should the judge do when an attorney claims he settled a case without consent from the client?
Should a lawyer be allowed to change his mind about a settlement agreement after realizing that the jury would have given his client more money than he agreed to settle the case for? My guess is that your quick answer would be something along the lines of "No. A deal is a deal and if you make a bad deal you have to live with the consequences."
OK, but what if the lawyer argues that he settled the case without authorization from this client (thus, by the way, admitting to unethical conduct)? Hmm. Well, in that case, you'd think that the client should not suffer the negative consequences of the lawyer's unethical conduct. But, even then, can't you argue that the deal is valid and that the client's claim has to be against his own lawyer for breach of fiduciary duty?
These questions were presented to a judge in California based on the following facts (as reported in The Recorder).
The plaintiff in the case was to be transported from a Los Angeles hospital to a psychiatric facility in San Diego. Once loaded into the ambulance, the EMTs buckled him onto a gurney but allowed his left arm to remain free because, they said, he was not being combative. After a few minutes, the plaintiff had taken off the restraints and jumped out of the moving vehicle onto the freeway. He filed a claim alleging ”severe, permanent brain injury” and seeking $21 million in damages. After a full trial, the jury came back with a verdict after four hours of deliberations.
Apparently, the lawyer for the plaintiff thought a four hour deliberation meant that the jury would return a verdict for the defense and he requested a recess to suggest a last-minute settlement negotiation with defense counsel. The parties conferred in the hallway, with their clients present, and agreed to settle for $350,000. The parties returned to the courtroom and after they announced they’d reached a settlement, the judge dismissed the jury.
At that point, instead of entering the terms of the settlement into the record, the plaintiff's attorney went to poll some of the dismissed jurors. The terms of the settlement were not officially entered into the record by the defendant's counsel either.
When plaintiff's lawyer learned that the jury’s verdict would have favored the plaintiff with a damages award of $9 million, he went back into the courtroom and argued that he had made a mistake and that he did not have his client's consent to agree to the settlement.
Some have argued that the claim is ridiculous because the client was present during the settlement negotiation. I don't necessarily agree with this. The fact that the client is present, in and of itself, does not mean the client agreed to what the lawyer did. But the argument does raise a number of questions. If it is true that this particular client had diminished capacity and had brain damage the attorney may very well have acted without authority. If the client had diminished capacity why didn't he have a guardian or a representative helping make decisions? On the other hand, if the client had enough capacity to make decisions up to the point of settlement, how come the lawyer now claims he didn't? Either way, the lawyer seems to have acted improperly.
In a post trial motion, the attorney for the defendant argued that "If plaintiff is allowed to get away with such gamesmanship in this case there is nothing to prevent any plaintiff's counsel from testing the waters with one jury, settling the case without authority from the client, interviewing the jurors to see which way they actually were leaning, and then repudiating the settlement and seeking a retrial."
After listening to arguments, the judge decided to order a new trial. The lawyer either acted unethically or falsely admitted to unethical conduct in order to get out of a settlement he had agreed to (which is unethical itself because it is dishonest), and may have committed malpractice, but the judge has given him a second chance.
What do you think of the judge's decision?
OK, but what if the lawyer argues that he settled the case without authorization from this client (thus, by the way, admitting to unethical conduct)? Hmm. Well, in that case, you'd think that the client should not suffer the negative consequences of the lawyer's unethical conduct. But, even then, can't you argue that the deal is valid and that the client's claim has to be against his own lawyer for breach of fiduciary duty?
These questions were presented to a judge in California based on the following facts (as reported in The Recorder).
The plaintiff in the case was to be transported from a Los Angeles hospital to a psychiatric facility in San Diego. Once loaded into the ambulance, the EMTs buckled him onto a gurney but allowed his left arm to remain free because, they said, he was not being combative. After a few minutes, the plaintiff had taken off the restraints and jumped out of the moving vehicle onto the freeway. He filed a claim alleging ”severe, permanent brain injury” and seeking $21 million in damages. After a full trial, the jury came back with a verdict after four hours of deliberations.
Apparently, the lawyer for the plaintiff thought a four hour deliberation meant that the jury would return a verdict for the defense and he requested a recess to suggest a last-minute settlement negotiation with defense counsel. The parties conferred in the hallway, with their clients present, and agreed to settle for $350,000. The parties returned to the courtroom and after they announced they’d reached a settlement, the judge dismissed the jury.
At that point, instead of entering the terms of the settlement into the record, the plaintiff's attorney went to poll some of the dismissed jurors. The terms of the settlement were not officially entered into the record by the defendant's counsel either.
When plaintiff's lawyer learned that the jury’s verdict would have favored the plaintiff with a damages award of $9 million, he went back into the courtroom and argued that he had made a mistake and that he did not have his client's consent to agree to the settlement.
Some have argued that the claim is ridiculous because the client was present during the settlement negotiation. I don't necessarily agree with this. The fact that the client is present, in and of itself, does not mean the client agreed to what the lawyer did. But the argument does raise a number of questions. If it is true that this particular client had diminished capacity and had brain damage the attorney may very well have acted without authority. If the client had diminished capacity why didn't he have a guardian or a representative helping make decisions? On the other hand, if the client had enough capacity to make decisions up to the point of settlement, how come the lawyer now claims he didn't? Either way, the lawyer seems to have acted improperly.
In a post trial motion, the attorney for the defendant argued that "If plaintiff is allowed to get away with such gamesmanship in this case there is nothing to prevent any plaintiff's counsel from testing the waters with one jury, settling the case without authority from the client, interviewing the jurors to see which way they actually were leaning, and then repudiating the settlement and seeking a retrial."
After listening to arguments, the judge decided to order a new trial. The lawyer either acted unethically or falsely admitted to unethical conduct in order to get out of a settlement he had agreed to (which is unethical itself because it is dishonest), and may have committed malpractice, but the judge has given him a second chance.
What do you think of the judge's decision?
Monday, April 23, 2012
Can lawyers participate in website that provides answers to legal questions to customers for a fee?
The South Carolina Bar’s Ethics Advisory Committee has issued an opinion (available here) in which it addresses the question of whether it is proper for an attorney to participate in a website which offers answers to questions for a fee.
As described in the opinion, the website
The Ethical Quandary and the Legal Ethics Forum have more on the story.
As described in the opinion, the website
"allows members of the public to post questions concerning a number of different topics for a fee. . . . .Members of the public may ask questions that will be answered by lawyers, doctors, nurses, mechanics, and other professionals. Members of the public pay the website a fee to be able to ask questions. In turn, the professional, here a lawyer, would receive the questions from the member of the public and would answer the question. After the question is answered, the lawyer is paid a fee from the website for answering the question for the member of the public. Members of the public could be from and ask a question concerning any state or other jurisdiction and are not limited to South Carolina."Based on these particular circumstances, the Committee concluded that lawyes are not allowed to participate in the website's services. The Committee concluded that a lawyer’s participation under these circumstances would be improper but also that "[a]s to legal information websites in general, if a website complies with all communications and advertising rules, [a] Lawyer could participate in such a program but with specific caution against inadvertently forming an attorney-client relationship by offering more than basic information of general applicability. Where legal advice is provided, it is improper for Lawyer to accept compensation from the website provider without complying with Rule 1.8(f)."
The Ethical Quandary and the Legal Ethics Forum have more on the story.
Friday, April 20, 2012
Court dismisses case against proponent of jury nullification
In a couple of weeks I will be discussing the concept of jury nullification in my Professional Responsibility class, so I thought I would link to this story reported today.
U.S. District Judge Kimba Wood (of the Federal District Court in Manhattan) has dismissed a claim against a retired chemistry professor who was arrested and charged with a misdemeanor for repeatedly handing out pamphlets to people outside a lower Manhattan courthouse urging jury nullification. Go here and here for more on this story.
Jury nullification, of course, refers to the right of a jury to disregard the law when making a decision. As judge Wood emphasized, an individual should not be penalized for expressing his or her approval of jury nullification, but I think there is still some debate as to whether it would be improper for an attorney (during a trial) to remind the jury of its right to nullify, let alone ask, encourage or urge the jurors to do it.
There is a lot of literature out there on this subject and there are a number of organizations that support the concept. Go here and here for two examples.
U.S. District Judge Kimba Wood (of the Federal District Court in Manhattan) has dismissed a claim against a retired chemistry professor who was arrested and charged with a misdemeanor for repeatedly handing out pamphlets to people outside a lower Manhattan courthouse urging jury nullification. Go here and here for more on this story.
Jury nullification, of course, refers to the right of a jury to disregard the law when making a decision. As judge Wood emphasized, an individual should not be penalized for expressing his or her approval of jury nullification, but I think there is still some debate as to whether it would be improper for an attorney (during a trial) to remind the jury of its right to nullify, let alone ask, encourage or urge the jurors to do it.
There is a lot of literature out there on this subject and there are a number of organizations that support the concept. Go here and here for two examples.
More criticism of the prosecutor in Zimmerman case
I recently posted links to a video and some articles and comments criticizing the prosecutor in the Zimmerman case (here and here). Here is another one. Given a new photo released today that shows Zimmerman was bleeding after the incident, Professor Jonathan Turley concludes that
"with this photo, the charge of second-degree murder appears even more excessive and undermines Special Prosecutor Angela Corey’s claim that she was not affected by the political pressure to charge Zimmerman. I can understand a manslaughter charge, even with the photo, but no reasonable prosecutor would consider the second-degree murder charge as based on this evidence. Corey clearly must have seen this photo and the reports before her charging of Zimmerman."
Supreme Court holds private attorney is entitled to immunity when hired by government
Last week, the US Supreme Court issued its opinion in Filarsky v. Delia holding that a private attorney, retained by a city to assist in an administrative investigation, is entitled to assert qualified immunity from a suit brought by the person who was under investigation. For my previous coverage of the case go here, here, here and here. You can read the Court's opinion here. For some commentary on the case you can go to SCotUS blog,
Is There an Ethical Duty to Convey Offers to Mediate?
Is There an Ethical Duty to Convey Offers to Mediate? I think so....Discuss... here.
Wednesday, April 18, 2012
What to expect from the ABA 20/20 Commission
It was recently reported that ABA's Ethics 20/20 Commission has decided not to draft a proposal on non-lawyer ownership of law firms. However, next August the Commission will be proposing changes to Rules relating to technology and confidentiality, technology and advertising, outsourcing, and lawyer mobility issues. You can find a slightly dated list of proposals here. The Commission will be submitting final versions of the proposals next month.
Thanks to Prof. Andrew Perlman for the update.
Thanks to Prof. Andrew Perlman for the update.
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