Should a single incident of incompetence or negligence be enough to warrant discipline?

The Legal Profession blog is reporting on an interesting case in which the West Virginia Supreme Court of Appeals imposed sanctions on an attorney for what some members of the court thought was merely a single act of negligence. The case is called Lawyer Disciplinary Board v. Burke and it is available here.

The case is interesting because it raises the question of whether minor transgressions should subject lawyers to discipline.  Or, in other words, the question of at what point does a particular misconduct is "bad enough" to warrant discipline.  The majority opinion rejected the lawyer's argument that, even tough negligent, his conduct did not rise to an ethics violation, while, in a dissenting opinion, Chief Justice Ketchum argued that "nothing [the] lawyer...did came close to being an ethical violation" and that a single act of negligence should not be considered to violate ethical standards. 

In fact, the Chief Justice opinion could be interpreted to say that there should not be discipline for any act of negligence:

The problem with the majority’s opinion is that it fails to define disciplinable incompetence with any clarity so as to allow for predictability. Single lawyer slipups are generally not ethical violations. They may expose the lawyer to professional negligence liability, but it has nothing to do with the lawyer’s ethics. Discipline should only be imposed when the lawyer’s error is intentional, reckless, repeated, or accompanied by some other misconduct like concealment.

What the Chief Justice is saying that a single incident of incompetence would justify discipline only if it was intentional.  But, if it was intentional, then it wouldn't be negligent, would it?  And, he also says if it was "repeated," in which case it would not be a single incident...

I don't necessarily disagree that a single instance of negligent conduct, depending on the circumstances, does not need to result in discipline, but this general assertion by the Chief Justice seems to be too broad.  Discipline can not be limited to instances of intentional conduct.  The very notion of incompetence is based on the fact that an attorney may violate a rule of conduct without intent.  Limiting the disciplinary system to the regulation of intentional conduct is not supported by the current regulatory approach and would be wrong and dangerous.

Does the Constitution Give Pretrial Detainees the Right to Disclosure of Exculpatory Evidence?

As is well known, in Brady v. Maryland, the Supreme Court held that prosecutors have a duty to disclose exculpatory evidence to criminal defendants.  Failure to disclose such information would constitute a violation of the defendant’s right to due process under the Fourteenth Amendment.  However, courts are unclear on whether the Fourteenth Amendment right to the disclosure of exculpatory evidence also extends to pretrial detainees.  As discussed in Circuit Splits, the Eighth Circuit recently touched on the disagreement among the circuits over this issue in a case called Livers v. Schenck.  Go here to see the full post by Circuit Splits.

What Would Happen If Nonlawyers Invested in Law Firms?

One of the, if not the, hottest topic in Professional Responsibility today is whether non-lawyers should be allowed to invest, fund or essentially "own" law firms.  Currently, the prevailing view in the US is that it would be a bad idea, while the opposite seems to be the view in the UK.  Here is a link to a short discussion the subject.  Make sure you read the comments below the main post.

Washington Supreme Court reverses conviction because of prosecutor's improper use of PowerPoint presentation during closing statement

About a month ago, the Washington Supreme Court issued an interesting opinion holding that a prosecutor engaged in prejudicial misconduct requiring a new trial when he used a PowerPoint slide show during closing argument that featured highly inflammatory photos captioned with his own commentary and opinion, including several slides of the defendant with the word “guilty” superimposed across his face.  The case is called In re Glasmann. Writing for the 5-4 majority, Chief Justice Barbara A. Madsen labeled the prosecutor's misconduct “flagrant and ill intentioned” and concluded that it so permeated the state's closing and tainted the case that the error could not have been cured by an instruction to the jury.

Comment on issues created by triangular relationship and the appointment of independent counsel to represent an insured

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim.  The case scenario discussed in the comment is not uncommon.  The plaintiff sued two physicians (an "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury.  They both want to claim it was the other, but their actions are covered by one same insurance policy.  The insurance company assigns the case to two separate attorneys to represent each individual defendant separately.  Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement.  What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors?  How can it determine which one to blame and what are the rights of that doctor in the negotiating process?  What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement?  These are some of the issues discussed.  You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company.  The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line.  However, I think the comment is not entirely accurate in one small point.  It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident."   In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake.   The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer.  The employer has the right to be indemnified in full.  The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement.  And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation. 

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

New opinion on the right of in-house counsel to sue former employer for retaliatory termination of employment

The question of whether in-house counsel have a right to sue a former employer/client for wrongful termination is one that continues to generate opinions around the country.  In class, for example, we discuss the (in)famous Balla v Gambro decision in which the court denies lawyers the right to sue for wrongful termination when they are fired for acting according to professional conduct obligations.

Other jurisdictions have taken different approaches, and just a few days ago, the D.C. Bar Legal Ethics Committee issued a new opinion in which it concludes that in-house lawyers suing their employers or clients for discrimination or a retaliatory firing can't disclose any confidences or secrets, unless they're defending against a counterclaim or affirmative defense.  The Blog of the Legal Times has more information here.

Video on Connick v Thompson

As you probably remember, back in 2010, the Supreme Court decided Connick v. Thompson, which has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years," absolving the New Orleans District Attorney's office (under DA Harry Connick, Sr.) of complaints that it had failed to train prosecutors about their duty to disclose exculpatory evidence.  (If you type "Connick" on the "search this blog" box on the right side panel (under my name), you will find a long list of entries with a lot of information about that case.)  Adding to that wealth of information and materials, here is a very short but informative video on the case.

 

Thank you to Renee Newman Knake of Professional Responsibility: A Contemporary Approach for the link.

Supreme Court hears oral argument on possible retroactive impact of Padilla v. Kentucky

After a two-day delay because of storm Sandy, the Supreme Court heard oral arguments in Chaidez v. United States, which raises the issue of the retroactive application of Padilla v. Kentucky (2010) in which the Court held that a Sixth Amendment ineffective assistance of counsel claim could be based on a defense counsel’s failure to inform his client of the possible immigration consequences of a plea agreement.  Kevin Johnson, a well known professor and scholar in the area of immigration law has posted a brief comment on the oral argument here.

Judge in Trayvon Martin murder case denies request to regulate speech

The New York Times is reporting that the judge in the Trayvon Martin murder case on Monday denied a prosecution request to bar lawyers for George Zimmerman from using a Web site about legal issues, as well as social and traditional news media, to comment about the case.  Go here for the full story.

Sanctions for misconduct during depositions

In class we discuss a few cases illustrating improper conduct during depositions.  There are many such cases - and some videos - that are useful for this purpose.   Unfortunately, the problem does not seem to go away.  In part, the problem continues because by their very nature depositions are conducted away from the scrutiny of the court and many lawyers think that they can get away with being overly aggressive and insulting.  I don't know who they are trying to impress; but savy lawyers know how to counter those tactics.  Earlier this year, the ABA Journal reported on a case in New York where an attorney was imposed a $10,000 sanction for his behavior at a deposition.  See here, here and here.  The lawyer was also ordered to pay for the attorney's fees for the costs of pursuing the sanctions motion.  As reported yesterday, this bill came out to a little over $36,000.  So, over $46,000 out of your own pocket for being obnoxious and not knowing how to behave during a deposition should make you want to think twice about learning how to defend a deposition properly...