Op-ed on right to effective assistance of counsel at the plea bargaining stage

In a recent Op-ed piece in the ABA Journal, Erwin Chemerinsky (dean of the Univ of California - Irvine law school) writes that "it is important to not lose sight of two [Supreme Court] cases that are likely to have a dramatic effect on lawyers and judges. In Missouri v. Frye and Lefler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage. Because about 95 percent of all criminal convictions are gained via guilty pleas, these cases will have a significant effect on the practice of law and also likely will lead to a large number of challenges by individuals seeking to have their pleas overturned."  You can read the full article here.


Thanks to the Legal Ethics Forum for the link.

How not to practice law: lie about your assets, don't file tax returns

Continuing our on going list of simple rules on how NOT to practice law, here are two quick ones:

1.  Claim you don't own any jewelry in your bankruptcy application when you are wearing a Rolex.  This earned a three month suspension for this lawyer.

2.  Don't pay your taxes, particularly if you are a former attorney for the IRS and now in private tax law practice (see here).

NY Court finds that wrongfully imprisoned client cannot collect noneconomic damages in malpractice action

About a month ago, the New York Appellate Division, Fourth Department, issued a very short opinion reaffirming the view that a plaintiff cannot recover non-pecuniary damages in a legal malpractice action.  According to the court, New York courts have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to non-pecuniary damages arising out of representation in civil proceedings.  Here, the plaintiff argued the case was different because his claim involved a malpractice on the part of a criminal defense lawyer.  The plaintiff argued that, based upon the type of egregious harm most likely to be suffered by a defendant who is the victim of malpractice in a criminal action -- the loss of liberty attendant to a period of incarceration -- harm that is non-pecuniary in nature.

Thus, assuming the statement about the state of the law in legal malpractice in civil cases is correct, a decision in favor of the plaintiff in this case would have meant that plaintiffs suing criminal defense lawyers for malpractice would have the right to recover for a certain category of damages that plaintiffs suing for malpractice in civil cases wouldn't. 

The court did not agree with the plaintiff and held that plaintiffs in malpractice actions are not entitled to anything but pecuniary damages. 

The court concluded that "[a]llowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions."

I have not researched the question to see what is the prevailing view on this in other jurisdictions, but I do not find this reasoning convincing. I understand the concern about a chilling effect, and the desire to provide incentives for attorneys to help indigent defendants.  But I don't understand the need to limit the possible recovery of a plaintiff that has the right to recovery.

The burden of proof in any malpractice case is high and in criminal cases it is even higher since the former criminal defendant has to show actual innocence (in most jurisdictions including NY - something the court gets wrong in the opinion, by the way).  This means the likelihood that a plaintiff would be successful in a malpractice case of this sort is low, and if the case is such that this is possible it probably involves clear negligence on the part of the lawyer.  Why deny recovery to a deserving plaintiff who has clearly suffered an injury caused by a negligent lawyer?

The case is called Dombrowski v. Bulson and the court's opinion can be found here.

More on the Dept of Justice action regarding prosecutors' misconduct

A few days ago I criticized the Dept of Justice's investigation that concluded certain prosecutors did not act intentionally after an independent investigator had found clear and intentional misconduct.  I called the whole thing "a joke."  Evidently, I am not alone in my criticism.  Today, Prof. Jonathan Turley has published a comment in which he agrees with my position, although he did not use the same language.  Being more eloquent than I, he simply said the DoJ "offered rhetorical punishment as a substitute for true punishment."  Like I said, "a joke."

You should read Prof. Turley's full comment here, but allow me to quote the beginning so you get the idea:

The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others. The slightest discrepancy in testimony or omission in reporting can bring a criminal charge from the DOJ. The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. 

Meanwhile, the Legal Ethics Forum is reporting that the firm that represented the defendant in the case in which the prosecutors engaged in the misconduct, not surprisingly, also disapproved of the DoJ's action and issued the following statement:

Today the Department of Justice demonstrated conclusively that it is not capable of disciplining its prosecutors. Apparently, prosecutors can violate the Constitution, deny the defendant exculpatory evidence demonstrating innocence, and introduce perjured testimony without any fear that they will be punished. Prosecutors orchestrated a miscarriage of justice in Senator Stevens’ case that caused the Attorney General of the United States to order the case dismissed. Trial Judge Emmet Sullivan declared that the misconduct was the worst he had encountered in 25 years on the bench. The misconduct caused a jury to render an illegal verdict, which in turn resulted in the loss of Senator Stevens’ re-election bid. And, the balance of power shifted in the United States Senate. The punishment imposed is laughable. It is pathetic. No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report.

Update on the prosecutorial misconduct report regarding the Ted Stevens case: prosecutors' office finds no intent after independent investigation found intent; prosecutors suspended without pay...

Long time readers of this blog will remember I have been following the story about prosecutorial misconduct in the Ted Stevens case and that I have posted numerous comments and links on it.  To access those, type "Stevens" in the "search this blog" box on the right side panel.

Here is the latest, as reported in the Wall Street Journal law blog:  "At the request of the chairmen of the House and Senate judiciary committees, the Justice Department turned over its internal report on the botched prosecution of the late Sen. Ted Stevens. The department publicly released [a] summary of the findings by its Office of Professional Responsibly [available here].  A separate court-ordered investigation concluded that prosecutors concealed evidence from Mr. Stevens’s defense team, but it stopped short of a criminal contempt finding."

I criticized this report here.  I argued that it was inconceivable that a report could find clear and intentional misconduct and not recommend sanctions.  (That report found the prosecutors acted intentionally to violate ethics rules).

Contrary to that criminal investigation, however, the DoJ's own report did not find that the prosecutors acted intentionally and for that reason concludes that the prosecutors should be sanctioned through forced time off without pay.

I think that is way too lenient.  An independent investigation found the prosecutors intentionally violated the rules but the prosecutors' own office found they did not.  What a joke.

I think that prosecutorial misconduct is a tremendous problem in this country and until the authorities start getting serious about it by imposing real sanctions it will continue to be a problem.  Obviously, there are exceptions, as in the Duke lacrosse team case, which resulted in the disbarment of the prosecutor, but these are rare.

The New York Times has more on the story here. The Blog of the Legal Times has more here. 

Using the prosecution of George Zimmerman for a PR course?

Obviously, there has been a lot of media coverage on the prosecution of George Zimmerman.  A lot of it has centered on the possibly unethical conduct of the District Attorney.  See here, here and here.  Given all the criticism and the material available already, John Steele of the Legal Ethics Forum has prepared a list of interesting questions, hypos, and issues that could be used to discuss important material in a Professional Responsibility class.  For the full list and a short discussion go here.

Conviction reversed because judge was working for the prosecutor at the time

The Legal Profession blog is reporting on a case in which the Minnesota Supreme Court reversed a criminal conviction because the presiding trial judge had been retained by the prosecuting attorney as a expert witness in an unrelated civil case.  The defendant asked the judge to recuse himself, but the judge denied the motion. 

Should an illegal immigrant - undocumented worker be admitted to the California bar?

At How Appealing, Howard Bashman rounds up articles about a pending application to the State Bar of California:

"Court to review request of illegal immigrant to practice law; A paralegal who was brought to the United States as a young child has been certified by the State Bar of California, raising broader questions about licensing illegal immigrants in other professions": Maura Dolan has this article today in The Los Angeles Times. In today's edition of The San Francisco Chronicle, Bob Egelko reports that "Court to decide if illegal immigrant can practice law."  And Howard Mintz of The San Jose Mercury News reports that "California Supreme Court to decide if illegal immigrant can practice law."

Thanks to John Steele of the Legal Ethics Forum for the link.

Federal bill proposed to codify prosecutors' duties

Two months ago, Sen. Lisa Murkowski (R-Alaska) introduced a bill called the Fairness in Disclosure of Evidence Act of 2012 (S. 2197), which is a bill to “require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for other purposes.” The Act begins by defining the term “covered information” to mean all “information, data,documents, evidence, or objects that may reasonably appear to be favorable to the defendant in a criminal prosecution brought by the United States with respect to (A) the determination of guilt; (B) any preliminary matter before the court before which the criminal prosecution is pending; or (C) the sentence to be imposed.”  For a comment on the bill go here.




Thanks to Roy Simon for the update.

Washington State Bar Association issues opinion on metadata

A few days ago, I posted a summary of a new opinion on an attorney's obligation when receiving a document by mistake (see here). A more complex problem arises when the document is received in electronic format (as a Word or Pdf file sent by email, for example).  In such a case, the document may contain important meta data, often easily accessible.  As explained in the ABA Center for Professional Responsibility website,

Metadata is loosely defined as "data about data." More specifically, the term refers to the embedded stratum of data in electronics file that may include such information as who authored a document, when it was created, what software was used, any comments embedded within the content, and even a record of changes made to the document.

While metadata is often harmless, it can potentially include sensitive, confidential, or privileged information. As such, it presents a serious concern for attorneys charged with maintaining confidentiality -- both their own and their clients. Professional responsibility committees at several bar associations around the country have weighed in on attorneys' ethical responsibilities regarding metadata, but there is no clear consensus on the major metadata issues. To help track current views on metadata and ethics, we've assembled the following chart.

A number of jurisdictions have issued opinions on the duties of an attorney who receives documents with metadata.  The Washington State Bar Association recently issued the most recent opinion on the subject.  You can read the full text of the opinion, which is very short, here.  Go here for a summary of the opinions on this subject from other jurisdictions. I also recently mentioned (here) an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.

According to the recent WSBA opinion, lawyers may review readily accessible metadata that an opposing counsel unwittingly transmits in an electronic document but must not use software to extract such metadata from a “scrubbed” document.  It places the duty to prevent the disclosure of data on the sender and only imposes on the recipient a duty to notify the sender that the document contains readily accessible metadata.  The recipient is not ethically obligated to stop reading the document or to return the document, but cannot attempt to dig up metadata that the sender affirmatively tried to remove. Such conduct would violate the rules regarding respect for third parties' rights and conduct prejudicial to justice.