Can Prosecutors Use a Defendant's Pre-Arrest Silence as Evidence of Guilt?

Can prosecutors use a defendant's pre-arrest silence as evidence of guilt?  Circuit courts are split on this issue as explained in this post in the blog Circuit Splits.   

LA Times article on whether undocumented immigrant should be allowed to practice law

A few days ago I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (see here).  Here is the latest - in the Los Angeles Times.

One more link to the new amendments to Model Rules

Here is a link to a "red-line" version of all the amended ABA Model Rules.

Text of the recently approved amendments to the Model Rules

Here are links to the text of the approved amendments:

Rule 1.6

Rules 1.18 and 7.3, and 7.1, 7.2 and 5.5

Rules 1.1, 5.3 and 5.5

Rule on Practice Pending Admission and Comment to Rule 5.5

Rule for Admission by Motion

Rule 1.6 and Rule 1.17

Comment paragraph [3] to rule 4.4 was also amended as follows:

[3] Some lawyers may choose to return a document or DELETE electronically stored information unread, for example, when the lawyer learns before receiving it the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or DELETE electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.


Thanks to Andrew Perlman for the links.

Illinois appellate court finds failure to communicate plea offer supports claim of ineffective assistance of counsel

A couple of months ago, the Illinois appellate court found that an attorney's failure to communicate a plea offer can be the basis of a claim of ineffective assistance of counsel.  Seems obvious to me.  The case is called People v Trujillo and it is available here.

ABA approves changes to the Model Rules

Professor Andrew Perlman, Chief Reporter of the ABA Commission on Ethics 20/20, is reporting (at the Legal Ethics Forum) that this afternoon the ABA House of Delegates approved numerous changes to the Model Rules of Professional Conduct and related ABA policies, adopting all six resolutions proposed by the Commission.  A brief two page summary of the changes can be found here, and you can find the specific amendments that the ABA adopted along with the accompanying reports here.  (Resolutions 105A and 105F in the preceding link underwent minor changes after they were posted.  Clean versions of those Resolutions should be available within the next few days.) 

Professor Perlman is also reporting that the six resolutions adopted today reflect the bulk of the Commission's proposals, though the Commission will continue to study several remaining issues before the Commission completes its work in February 2013.  Those issues relate to virtual law practice, choice of law problems associated with conflicts of interest and nonlawyer ownership, and domestic practice authority for inbound foreign lawyers.  (The Commission's continued consideration of the choice of law problems associated with nonlawyer ownership was the subject of a remarkably spirited debate today in the ABA House of Delegates.)

Debate continues as to whether undocumented immigrant should be allowed to practice law; Dept. of Justice says no

Back in May (and later in June), I posted links to the debate in California as to whether an illegal immigrant should be allowed to practice law (see here and here.)  After the State Bar of California argued that an illegal immigrant should be eligible to practice law, the court asked the Obama administration to submit written arguments n the issue.  The Department of Justice has now complied taking the position that illegal immigrants should not be allowed to practice law.  For more information on the story go to the JURIST, the Legal Ethics Forum, The Wall Street Journal law blog, the Mercury News, the San Francisco Chronicle and Reuters. 

Illinois State Bar Association supports ban on non-lawyer ownership of firms

The Illinois State Bar Association Board of Governors has passed a resolution reaffirming the ABA policy – adopted in 2000 – that law firms should not be owned by non-lawyers and that legal fees should not be shared with non-lawyers. Proposals that would change this policy have been circulated in connection with the work of the ABA’s Commission on Ethics 20/20.  Go here for more on the story.

Court finds state violated attorney's constitutional rights

In an important opinion on first amendment rights of lawyers, the United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  The case is called Berry v. Schmitt and it is available here.

The case is important because it discusses the fine line between the authority of the state to regulate attorney speech and the individual attorney's right to express his opinion about judges and the court system.  For a number of reasons, attorneys have less freedom of speech than other professionals - there are rules that limit what can be said about on going cases for example - but just as there is a limit to what attorney's can say, there has to be a limit to the power of the state to regulate speech.

For a good discussion of the ruling in Berry go here, here and here.

Podcast on the proposals to amend the ABA Model Rules

Here is a podcast of a program discussing the proposals to amend the Model Rules.