ABA Commission 20/20 releases proposals on foreign lawyers

The ABA Commission on Ethics 20/20 has released for comment, along with a Cover Memo from Co-Chairs Jamie S. Gorelick and Michael Traynor, revised drafts relating to inbound foreign lawyers.

The first two revised drafts describe possible amendments to ABA Model Rule 5.5 and to the ABA Model Rule for Registration of In-House Counsel. The third relates to the ABA Model Rule on Pro Hac Vice Admission.  Comments will assist the Commission in its consideration of these issues. You can e-mail your comments by October 12, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org.   

Justice Department defends problematic interpretation of prosecutors' duty in case before DC disciplinary authorities

The Blog of The Legal Times is reporting (here) on an interesting story that involves a clash between the U.S. Justice Department and the D.C. Office of Bar Counsel over a former federal prosecutor's alleged ethics transgression.  At issue is the proper interpretation of the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors."  The rule is mostly equivalent to the ABA Model Rule with one significant difference.

Both rules state that prosecutors have a duty to timely disclose to the defense "all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."  This has been interpreted to mean that the duty under the rules of professional conduct is broader than the duty imposed by substantive law.  ABA Formal Opinion 09-454 clearly explains that the duty under rule 3.8 is more extensive than the federal constitutional obligation.  In particular, Rule 3.8 is not limited to material evidence nor is it limited to information that is likely to lead to an acquittal.

The problem is that the DC version of the rule added a sentence to its comment that says that the rule  "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."

Thus, even though the actual language of both rules is the same, the extent of the duty described has been interpreted differently.  The Dept of Justice wants the DC rule to be read to impose a duty to disclose information only if the information is material.  The DoJ's brief in the case - In the Matter of Kline - is available here.  The brief of the office of Bar Counsel is available here.

This is a tough one because the DC rule's comment says what it says and it is pretty clear.  You can make the argument that it is pretty clear the drafters of the rule wanted it to be interpreted differently than the drafters of the ABA model rules.  The problem is that that would be a bad interpretation.  I happen to agree with the ABA's view on this.  The ethical duty should be broader; it should not be limited by materiality.  Yet, it seems the authorities in DC thought otherwise when they drafted their version of the rules.  It will be interesting to see how this issue is resolved.  I hope DC decides to amend the comment and join the ABA in its approach to the prosecutor's duty.

For more on the story, go to the Blog of the Legal Times which has more details and links to relevant documents in the case.

How not to practice law: get drunk, drive, crash your car into a pole then try to bribe a police officer with a personal check with your name on it

Here is another story worthy of our continuing series on bizarre, dumb or unbelievable conduct deserving of sanctions.  In this particular case, the attorney testified that on the date of the incident, he got drunk during lunch and later drove his car into a telephone pole.  He was handcuffed, placed in the back of a police vehicle, and taken to a police station where he allegedly attempted to bribe a police officer with a personal check.  The panel that considered the case noted that "an attorney who would offer to bribe a police officer by means of a personal check would have to have had his judgment impaired by something." The case is called In the Matter of Unni Krishnan and the opinion is available here.

Thanks to the Legal Profession blog for the information and link.

You always risk disbarment

One of the first important lessons I always try to get my students to learn is that given the fact that the rules don't provide for sanctions, and the fact that there is so much inconsistency when it comes to sanctions, no matter what the conduct is "you always risk disbarment."  To illustrate this, I assign In re Lamberis, 443 N.E.2d 549 (Ill. 1982), in which the hearing board, the review board, the administrator of the disciplinary system, the majority opinion of the Supreme Court and a couple of dissenting judges all proposed different sanctions for the conduct, which wasn't even in the context of the practice of law.  (The suggested sanctions were censure, suspension for 3 months, suspension for 6 months and disbarment). 

In any case, here is a new case that can also be used to remind everyone that you always risk disbarment.  The Legal Profession blog is reporting that the Maryland Court of Appeals has disbarred an attorney who withdrew an amount of money from his attorney trust account resulting in an overdraft of $5.24.

Is it really worth it to risk disbarment for $5 and change...?  I don't think so.  

How not to practice law: do everything wrong when leaving your firm

Here is a new installment in our running list on how not to practice law:  the Florida Supreme Court has suspended  two attorneys for misconduct in connection with their departure as employees of a law firm.  In the process of preparing to leave the firm, the attorneys solicited firm clients, made misrepresentations to the firm and clients, copied files without authorization and more.  The court found the use of the files amounted to criminal theft, dishonesty and conduct prejudicial to the administration of justice. The case is called Florida Bar v. William Henry Winters.

Judge rejects government's request to change rules on attorney/client communications at Guantanamo

A few days ago I reported that the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees. The new restrictions would require in some cases that a lawyer sign a "memorandum of understanding" 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.  My original post, which has links to the memorandum and other sources, is available here.

Yesterday, however, in what has been called "a strong rebuke against the government," the judge in the case refused to change the rules that have long governed communication and meetings between Guantanamo Bay detainees and their lawyers.  The judge's opinion is available here.  He agreed with the detainees' counsel, calling the government's effort to modify existing rules an "illegitimate exercise of Executive power."

For more on the story go to the Blog of the Legal Times and the SCotUS blog.

UPDATE 1:22 p.m.: For more go to the Jurist, The New York Times and How Appealing, which has links to eigth different articles on this. 

Last chance to nominate your favorite blogs for the ABA's list of the best legal blogs of the year

Today is the last day to nominate your favorite blogs for the ABA Journal 's annual 100 best legal blogs list ("Blawg 100"). If you have enjoyed reading my blog, please consider voting for it by going here.

Article on how disasters sometimes bring out the worst in lawyers

Richard Zitrin, professor of legal ethics at UC Hastings, has published an article describing how sometimes disastrous accidents make the legal profession look bad.  According to the old saying, when a disaster strikes the first two organized groups to show up are the press and the lawyers.  This proved to be true last month, when within two days of the Aug. 6 Chevron refinery fire that inundated Richmond with clouds of black smoke, a swarm of lawyers and their representatives descended on the city streets.

The problem is that while some of those lawyers were acting unethically, others were not and the authorities enforcing the law did not seem to understand the difference.   In the end, it is the profession in general that ends up looking bad.  Go here to read the full article. 

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.