ABA Commission asks for comments on Rule 5.5

The ABA Commission on Ethics 20/20 recently released a paper that asks whether Model Rule 5.5 should be revised to offer more guidance on the question of whether a lawyer may provide legal services on a temporary basis in this jurisdiction where the lawyer is not admitted.  For a discussion of the issues go to the Legal Ethics Forum and to My Shingle.com here. and here.

More reports on the slow death of the billable hour (which continue to be exaggerated)

I have reported before on the claims that the billable hour is dead or dying, always adding my opinion that reports of this death have been greatly exaggerated.  For my previous coverage on this subject see here, here, here and here.  You can also use the search function on the right side panel to look for posts on "flat fees" which discuss how the confusion on how to regulate the use of flat fees in some jurisdictions has eliminated their usefulness as alternatives to hourly fees.

Many of the sources of information cited in those older links come from the Wall Street Journal, which is why interestingly, today the WSJ law blog is finally accepting my view in a short article (available here) in which it states that "[d]espite all the hoopla about hourly billing going the way of the Edsel, law firms and their corporate clients have been much slower to adopt alternative billing arrangements than many had predicted..."

West Virginia decides not to file charges against judge for outburst

Yesterday I posted a note about the video showing a judge losing his temper in court (here) and a link to an article highly critical of the judge.  Today, Prof. Jonathan Turley is reporting that the West Virginia Supreme Court has announced that no charges will be filed against the judge in the case at least in part because "the judge is embarrassed and certainly contrite about his outburst."  Prof. Turley then argues that this "leaves some confusion over what it would take to get a charge out of the high court."  He also argues that "I have no doubt that [the judge] is embarrassed after becoming an Internet sensation. However, the video reveals conduct that is shocking and raises serious questions about Watkins’ suitability as a judge."  You can read Prof. Turley's latest comment on the case here.  The ABA Journal has more on the story here.

Video: How not to conduct a hearing

Yesterday, the ABA Journal posted a copy of a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  The judge was complete out of control because, according to him, the husband in the case had posted a story about the judge (which included a photo of the judge's house) on a website.  Since the hearing, the husband has filed a complaint against the judge before the Judicial Investigation Commission.  It will be interesting to see what is decided.

Assuming the accusation made by the judge is true, I think he had reason to be upset, but that does not excuse his behavior.

Professor Jonathan Turley has published a short comment on the story here in which he concludes that "[t]he ethics charge has obvious merit given the judge’s personal interest and anger — not to mention his loss of composure and demeanor. Regardless of the merits of the allegations, [the judge] was no longer a disinterested or neutral party."  You should read the readers' comments too.
 

How not to practice law: if you are a judge, go ahead and preside over a criminal hearing in a case in which you are the victim

Once again let's add another incredible but true story to our long list of things you should NOT do if you want to continue to practice law.  As usual, this list involves conduct that is so basic you'd think anyone would know what they are doing is improper.  Nothing complicated here.  It would be funny, if it weren't so serious.... 

So here is today's entry:  a judge is the victim of a crime and then finds himself presiding over the hearing to set bond for the person accused of that crime.  Apparently it did not occur to the judge that it would be a good idea to let a different judge take over... 

Interestingly, the judge just got a reprimand, maybe because, after all, he allowed the defendant to be released without bond. The actual letter of reprimand is available here. The Legal Profession blog has more here.

Oregon Supreme Court imposes discipline but refuses to explain why

Here is a link to a strange opinion by the Oregon Supreme Court in which the Court imposes an 18 month suspension.  What makes the opinion strange in my view is the fact that the Court explicitly refuses to explain its reasoning.  It simply says that  "We . . . conclude that an 18-month suspension is the appropriate sanction. An explanation of the extensive facts related to the four matters underlying this proceeding and of the appropriateness of the sanction would not benefit the bench, bar, or public."

I don't know but it seems to me that a little guidance so that other lawyers can learn from this one's mistakes and misconduct wouldn't hurt....

The case is called In re Goff and it is available here.

Thanks to the Legal Profession blog for the link.

Supreme Court decides a case on possible prosecutorial misconduct

While there are other cases capturing the attention of the public over at the Supreme Court, about two weeks ago, the Court handed down an interesting (and short) opinion on whether, as part of a closing argument, a prosecutor can suggest that the defendant, his attorney, and an expert witness (psychiatrist) colluded to fabricate a defense if the prosecutor subsequently states that it was not unethical for the defense attorney to do so.  In response, the Court found that the prosecutor's statements taken together did not rise to the level of violating the defendant's due process rights. The case is called Parker v. Matthews and it is available here.   The Legal Ethics Forum has more details and a short debate in the comments section (here).  I think the decision is wrong and that the conviction should have been reversed because of the prosecutor's comments. If you search here for "prosecutor's comments" you will find a number of cases in which court's have reversed convictions in similar cases. 

More on the criticism of the prosecutor in Zimmerman case; apparently she does not like to be criticized

I have posted several links to articles and videos in which other have criticized the conduct of the prosecutor in the George Zimmerman case in Florida (see here and here).  Among those critical of her conduct is Harvard Law Professor Alan Dershowitz.  Here is a video of an interview in which he says the prosecutors conduct was unethical.  Here is an article he published on the issue.

Well, apparently the prosecutor did not appreciate his comments and gave Harvard a call in which Dershowitz claims she went on a rant, including threatening to sue Harvard, in response to his comments.  Here is Dershowitz side of the story.  And here is a short debate on it at the Legal Ethics Forum.

I don't know what the prosecutor actually said nor what she claims would be the base for the claim against Harvard, but having heard Dershowitz interview, it seems to me his comments were pure opinion on a matter of public interest which means there is no basis for a defamation claim.  If the prosecutor does not like the criticism maybe she should not put herself in the middle of a public controversy.

Having said that, though, interestingly, in the article in which Dershowitz describes the prosecutor's call to Harvard he does make a statement about her conduct that sounds like a factual (as opposed to an opinion statement).  He says that she "willfully omitted" relevant information from the affidavit used to charge the defendant.  That statement, which I did not hear him make in the TV interview, could be argued to be a statement of fact about illegal conduct on her part, which, if untrue, could be used as a basis for defamation.  The problem is that, again, the determination of the whether the statement is "true" is based on a difference of opinion as to what the law requires in terms of support for an affidavit in support of an indictment.

How not to practice law: if you are a judge, tell your clerks to decide your cases for you while you are on vacation

Professor Jonathan Turley is reporting today that an Associate Circuit Judge in Missouri is under investigation for allegedly allowing her clerks to handle litigation matters as she vacationed in China last year. Go here for the story.

UPDATE (1/6/13):   The Commission on Retirement, Removal and Discipline recommended the judge be removed from office and the Missouri Supreme Court will now review the case.

State Bar of California supports illegal immigrant seeking bar admission

Last month I posted links to the debate in California as to whether an illegal immigrant should be allowed to practice law (see here).  The issue has not yet decided but the State Bar of California has filed its position in the case arguing that an illegal immigrant who passes the bar exam and demonstrates good moral character should be eligible to practice law. The court has also asked state Attorney General Kamala Harris, the Obama administration and other interested parties to submit written arguments in Garcia's case. It has not yet scheduled a hearing. Go here for more on the story.