Illinois Supreme Court rules attorney can't serve as attorney and guardian at litem in delinquency proceedings at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it. I stated that the way courts justified the practice "displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible."  Later I wrote a law review article on the subject (available here) in which I made a long argument in support of my position.

The Court did not grant the appeal in the case I wrote about in 2010, but some time later, it did grant the appeal in another case - In Re Austin M. - which raised the same issue.

I was glad the Court would be addressing the question, but I was not too optimistic about the possible result.  I thought the Court would continue to repeat the erroneous analysis that courts in Illinois had followed for many years.

Today I am very happy to report that the Illinois Supreme Court just released its decision in In Re Austin M. holding that an attorney may not assume the roles of advocate for a minor and guardian at litem simultaneously, finding that such “hybrid representation” constitutes a per se conflict of interest.  That is definitely the correct decision!

The opinion is available here.  For more on the case go to the Juvenile Law Center blog and here.

The opinion is long, but here are some of the most important passages:

    Austin’s initial claim on appeal is that the legal representation he received at his delinquency trial amounted to a denial of his right to counsel . . .  More specifically, Austin contends that, as a minor tried for a criminal offense in a delinquency proceeding, he had the right to a defense attorney, that is, an attorney who gives his client his undivided loyalty, who zealously safeguards his client’s rights and confidences, and who acts in accordance with his client’s wishes. Austin asserts that he was deprived of this type of counsel because his attorney. . . performed less as a defense attorney and more as a guardian ad litem (GAL).

    Austin contends that a GAL, unlike a defense attorney, owes a duty to the court and to society and may disregard a minor client’s wishes if the GAL believes it is in the minor’s best interests. . . . Further, Austin contends that his attorney’s “hybrid representation” deprived him of his statutory and constitutional right to counsel and constitutes a per se conflict of interest requiring reversal of his adjudication.

    The State asks us to reject this claim. . . . The State also maintains that even if Austin’s attorney did, in fact, function as both counsel and GAL at Austin’s delinquency trial, it is of no moment because this type of dual representation does not constitute a per se conflict of interest. According to the State, for hybrid representation to be reversible error, there must be evidence of an actual conflict of interest resulting from the hybrid representation.  Further, the State argues that nothing in the record indicates that Austin’s attorney’s performance was compromised in any way due to an actual conflict of interest. . . .

    Austin’s claim requires us to decide . . . whether “hybrid representation” is inconsistent with the statutorily and constitutionally guaranteed right to counsel afforded minors in delinquency proceedings . . .

   . . . .
   
    . . . [A] minor in a delinquency proceeding has a non-waivable right to be represented by a defense attorney. There is no statutory exception which would permit representation by a GAL—even one who is also an attorney at law.

    Minors in delinquency proceedings also have a constitutional right to counsel. . . .

    . . . .

    It is clear to us that a juvenile’s right to counsel in a delinquency proceeding is firmly anchored in both due process and our statutory scheme. . . .

    Given the above, the type of “counsel” which due process and our Juvenile Court Act require to be afforded juveniles in delinquency proceedings is that of defense counsel, that is, counsel which can only be provided by an attorney whose singular loyalty is to the defense of the juvenile. . . .

    . . . .

    In a delinquency proceeding, when counsel attempts to perform the role of GAL as well as defense attorney, the risk that counsel will render ineffective assistance or that an actual conflict of interest will arise is substantial. . . .

    . . . [W]hen a guardian ad litem is appointed in a delinquency case, it is generally because there is no interested parent or legal guardian to represent the child’s best interests. In these situations, the GAL must act in the role of a concerned parent, which is often in opposition to the position of defense counsel. . . .Further, a GAL—unlike a defense attorney—owes a duty to the court and to society. A guardian ad litem need not zealously pursue acquittal if he does not believe acquittal would be in the best interests of the minor or society.

    When counsel attempts to fulfill the role of GAL as well as defense counsel, the risk that the minor’s constitutional and statutory right to counsel will be diluted, if not denied altogether, is too great. . . . We conclude, therefore, that the interests of justice are best served by finding a per se conflict when minor’s counsel in a delinquency proceeding simultaneously functions as both defense counsel and guardian ad litem.

UPDATE:  I later wrote a law review article reviewing the opinion.  It is available here.

Comment on the split among courts on what happens when attorneys can't afford to pay sanctions

Here is a link to a short article on the fact that federal appellate courts are split over whether money sanctions issued against an attorney can be reduced when he cannot afford to pay.

Is it unprofessional not to carry malpractice insurance?

Some states do not require lawyers to have malpractice insurance.  Do you think it is unprofessional to opt not to get insurance?  Here is a short comment that makes a good argument that it is improper (in terms of professionalism) not to carry insurance.

Reminder: Aspiring Lawyers Should Not Engage in Terrorism

Reminder: Aspiring Lawyers Should Not Engage in Terrorism. Lowering the Bar explains here.

Supreme Court hints it may expand recent ruling on ineffective assistance of counsel

Lyle Denniston of the SCotUS blog is reporting that last Wednesday the Supreme Court "strongly hinted that one of last Term’s key rulings on the duties of criminal defense lawyers may get a prompt new look next Term, to see if it applies to death-penalty cases in Texas."  In a brief order, the Court put on hold an execution in Texas in a case that appears to be a major test of the impact of the Court’s 7-2 ruling last March in Martinez v. Ryan.  Go here for the full article (with links to the cases).

In Martinez, the Court created an exception to prior rulings that had strictly limited a convicted individual’s right to complain that a defense lawyer had not performed effectively at the trial holding that if a state did not allow an individual to raise that kind of claim until after the conviction has become final, a federal court can still decide the claim.  The new case will test whether and how Martinez applies to capital cases.

Covington & Burling sued for allegedly violating the "hot potato doctrine"

A former client of Covington & Burling (3M Corp.) has filed a complaint against the firm arguing that the law firm violated its duties to the client when it allegedly dropped the client in one matter to accept representation of another client (the state of Minnesota) against 3M.  The client is claiming a violation of what is sometimes referred to as the "hot potato doctrine" which considers it a violation of fiduciary duties when a lawyer abandons a client with the express purpose to claim the client is a "former" client which would allow the lawyer to take on a certain representation the lawyer would have been unable to undertake if the client had still been a "current" client.  You can read the complaint here.

Covington has asserted, on the other hand, that it agreed to represent the state of Minnesota in its litigation against 3M after confirming that the firm had no active matters for 3M and that there was no conflict based on any prior representation of 3M.  Covington has also stated that 3M signed a waiver in which it specifically agreed that Covington could sue 3M in the future on unrelated matters.

Evidently, 3M is now saying that Covington was representing 3M in active matters - although unrelated - at the time Covington agreed to represent Minnesota against 3M.  Covington is saying it was not representing 3M at the time.  So this is a matter of fact that will need to be determined.  In other words, the court will have to determine if Covington was in fact representing 3M in any active matters at the time. Also, the court will have to examine the waiver signed by 3M and determine it is is valid and whether it applies to the facts of the case. 

Assuming the waiver is not dispositive, if it is true that the chronology of events was what 3M claims it to be (that the law firm was representing 3M in an active matter, then the state asked the law firm to take on a new case against 3M, then the law firm dropped 3M, then the law firm took on the representation of the state and sued 3M...), I have to say that sounds a lot like a hot potato case to me, but it will depend on the chronology of events.  If, as Covington argues it had completed the representation of 3M long before it agreed to represent the state of Minnesota, there is no basis for 3M's claim.

Another thing that is interesting here is that the hot potato doctrine is usually used in support of a motion to disqualify a firm in an ongoing case.  Here, 3M tried to get Covington disqualified in the case it filed on behalf of the state of Minnesota seventeen months after that case had started.  That long delay in filing the motion is problematic but the motion has not been decided. Obviously, it will be interesting to see what happens with that motion.   (After the motion was argued, 3M filed a motion to recuse the judge and apparently the case is now before a different judge).  But whatever the case may be, the interesting thing I was referring to is that in this instance 3M has filed a claim for damages, asking for compensatory damages and for a refund of fees paid to the firm over a period of years.
 
Covington & Burling has filed a motion to dismiss the case, in which the firm alleges that the lawsuit filed by 3M is an effort by 3M to deprive the State of Minnesota of its chosen counsel, and to obstruct the litigation of the underlying case.  However, the motion does not address the merits of the claim raised by 3M. It is based on an argument of lack of jurisdiction.  As to the merits of the claim Covington simply states that "[t]he claims against Covington are completely without merit, which Covington will demonstrate at the appropriate time."

For more information and other links on the case go to the ABA Journal and Professor Jonathan Turley's blog.  Also, here is an older article on the case from Reuters which has a lot more information and links (including a link to the waiver mentioned above). 

ABA Journal's Annual Blawg 100 - Vote Today!

The ABA Journal is now accepting nominations for its 100 best legal blogs ("Blawg 100") list. If you've enjoyed reading my blog, please consider voting for it here by September 7.

Nominate your favorite Legal Ethics article for Zacharias Prize

Submissions and nominations of articles are now being accepted for the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. The committee will select from among articles in the field of Professional Responsibility with a publication date of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu

The deadline for submissions and nominations is September 1, 2012.

Thanks to the Legal Profession blog for the information.

Court considers changes to rules regarding representation of detainees at Guantanamo -- UPDATED

Last Friday, the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. Reportedly, lawyers for detainees argued they are concerned that the federal government is moving to "hamstring" the rights of detainees at the Guantanamo Bay detention center.  According the reports, Chief Judge Royce Lamberth expressed skepticism about the new restrictions, which in some cases require a lawyer to sign a "memorandum of understanding" (MOU) to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. A copy of the MOU is available here.  For more (and more links) on this story go the the Jurist and the Blog of the Legal Times.

UPDATE (8/20):  There is another article on the subject in the SCotUS blog.

Do prosecutors have too much power?

Prosecutorial discretion is an important part of the criminal justice system.  For the system to work, prosecutors must have some level of discretion on how to do their jobs.  But, all power can be abused, and, as the old saying goes, with power comes responsibility.  I have discussed the debate over whether suggesting or agreeing to untraditional punishment is a valid use of discretion or abuse of power. (See here and here, for example).

The issue is now back in the news.  Using a recent case in which a U.S. district judge in Denver rejected a plea bargain because the defendant had agreed to waive his right to appeal, The New York Times has published a debate on whether the judge’s concern "is a sign that plea bargains have gotten out of control and in the process given prosecutors too much power" and asking "[w]hen one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?"  Go here to read the five short opinion pieces on the issue written by former prosecutors, judges and academics.