Suggestions on how to make sure the mandatory pro bono program in NY is a success

A couple of weeks ago I reported that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar.  See here.  Then I reported on the fact that not everyone liked the idea. See here.

Now there's more.  Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has written an article with suggestions on how to make sure New York's program works effectively.  You can read the full article here.

Nevada Supreme Court holds prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea

In a new case addressing the issue for the first time, the Nevada Supreme Court has held that a prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea.  The case is called Nevada v. Huebler and it is available here and here. 

Given Brady v. Maryland and the rules of professional conduct related to the special responsibilities of prosecutors you would think this is self evident.  But it isnt.  Some courts have held that a defendant can't challenge the validity of a guilty plea by arguing a Brady violation.  In Huebler, the court explains that "[t]his issue arises because Brady evolved from the due-process guarantee of a fair trial, . . . and therefore has been described as a trial right, . . .  but when a defendant pleads guilty, he waives several constitutional guarantees, including the due-process right to a fair trial, and any errors that occurred before entry of the plea."

After discussing the conflicting case law, the court agreed with other courts that have held that not requiring prosecutors to disclose exculpatory evidence before negotiating plea agreements could tempt prosecutors to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas.  In the end, the court concluded that

"[w]hile the value of impeachment information may depend on innumerable variables that primarily come into play at trial and therefore arguably make it less than critical information in entering a guilty plea, the same cannot be said of exculpatory information, which is special not just in relation to the fairness of a trial but also in relation to whether a guilty plea is valid and accurate.  For this reason, the due-process calculus also weighs in favor of the added safeguard of requiring the State to disclose material exculpatory information before the defendant enters a guilty plea.

It is not every day that an innocent person accused of a crime pleads guilty, but a right to exculpatory information before entering a guilty plea diminishes the possibility that innocent persons accused of crimes will plead guilty."  

Ethics 20/20 Commission has filed its final resolutions

Thanks to Andrew Perlman, of the Legal Ethics Forum and the 20/20 Commission for the following announcement and links:

Yesterday, the ABA Commission on Ethics 20/20 filed final versions of its resolutions and reports with the ABA House of Delegates.  The House will vote on the resolutions at the ABA's Annual Meeting this August.

You can find the Commission's overarching summary and report here.  If you're only interested in a description of what the Commission is proposing and why, this document should do the trick.

If you want more details, the Commission's resolutions and accompanying reports can be found at the following links:

Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)

Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)

Admission by Motion (proposals affecting the Model Rule on Admission by Motion)

Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5) 

Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)

Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

Judge Removed For Pursuing Unwanted Romance With Attorney

The Legal Profession Blog has a report on a case in which the Delaware Supreme Court has ordered the removal of a family court judge for attempting "to establish an inappropriately close social relationship with a young female attorney" who regularly appeared before him.

Article on the demise of mega firm Dewey & LeBoeuf

The law firm of Dewey & LeBoeuf was created in 2007 in the largest merger of law firms in history. During the past few weeks reports have been coming in that it is falling apart.  Last week its partners were told “to seek out alternative opportunities.” The firm is falling apart because of financial problems.   Here is a link to a short article in the New York Times that claims the firm's troubles "are only an extreme version of those facing many other firms."

Two reports on consequences for conduct in violation of Rule 3.3: one criminal prosecution of criminal defense lawyer and one disbarment

In a rare criminal prosecution of a defense lawyer, a prosecutor today at trial accused a veteran attorney in Washington of devising a scheme to use fake evidence and perjured testimony to clear a client in a drug case.  The Blog of the Legal Times has the story here.

Meanwhile in an unrelated story, the Legal Profession Blog is reporting on the disbarment of a lawyer who admitted to using false evidence in a case.

Judge dismisses drug case because of prosecutor's misconduct

Back in February, I posted a story about a judge who, after being asked by the Justice Department, refused to delete from an opinion the name of a district attorney who engaged in misconduct.  At the time I said that I was happy to see a rare example of a judge doing something to encourage proper conduct by district attorneys.

Today I am happy to report the latest chapter in this case:  the  drug-smuggling case has now been dismissed because of the prosecutor's misconduct.  The judge reportedly stated she wants to ensure that the U.S. Attorney's Office takes the misbehavior seriously.  Good for her!

You can read the full story here.

Thanks to the Legal Ethics Forum for the update.

Perspective on the American criminal justice system

Here is a link to an article by a public defender on his perspective about the criminal justice system.  Here is a key paragraph:

I have arrived at the view that the criminal-justice system is broken in ways that I never imagined as a teenage intern sitting in Judge Jones’ courtroom. While my focus is on defending individual clients, I believe that we must profoundly change our approach to criminal justice in the country. Otherwise, my task will remain Sisyphean, and the rhetoric in our public discourse about America’s commitment to the ideals of freedom and justice, so ubiquitous in this election year, will continue to mock and humiliate my clients.

Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.” 

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.

Illinois Court of Appeals on burden of proof needed to support argument that crime-fraud exception defeats claim of privilege

The Illinois Court of Appeals has issued an opinion in a case called People v. Radojcic on the level of proof necessary to support a claim that the crime-fraud exception to the attorney-client privilege applies.  You can read the full opinion here.

In this case, the state wanted to have the defendant's attorney testify and the defendant objected arguing the communication was privileged.   The state presented testimony to support its contention that the defendant communicated with the attorney to advance his attempts to commit crimes or fraud and the court held that that testimony was sufficient to meet its burden.

Specifically, the court stated that

"[t]o defeat the privilege, the party seeking disclosure must show "that a prudent person has a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." . . . Often, only the communication itself can show that the privilege does not apply. . . . In some such cases, when other evidence fails to show that the client has lost the privilege, the trial court may hear evidence in camera to determine whether the privilege applies. Before hearing evidence in camera, the judge should require the party seeking disclosure to show facts that would support a reasonable belief "that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies."

Based on this analysis, the court concluded that

"[b]efore the trial court excludes testimony from an attorney because of attorney-client privilege, the court must consider whether the party seeking to use the testimony has made a sufficient showing to give the court reason to question witnesses in camera to determine whether the attorney-client privilege applied to the communications between the attorney and the client. We find that the State presented testimony that would give a reasonable person cause to suspect that the client here used his communications with his attorney to advance his attempts to commit crimes or fraud. Accordingly, we hold that attorney-client privilege does not preclude testimony from the attorney here, and we reverse, and remand for a trial at which the State may call the attorney as a witness."