New Mexico rejects screening as a way to avoid conflict when a lawyer joins a new firm

In an opinion released last week, the Supreme Court of New Mexico has interpreted the state rule on imputation of conflicts of interest to hold that a firm may not represent a client if a new lawyer on the firm had played a substantial role in representing an interest adverse to the client in the lawyer's former firm.  If the lawyer played a substantial role, the firm would be disqualified automatically.  Screening, which is now accepted in the ABA Model Rules as an alternative to avoid this type of conflict, is not an option in New Mexico.  The case is called Mercer, LLC. v. Reynolds and it is available here. 

Thanks to the Legal Profession blog for the link.

Comment on whether sentencing a defendant to go to church is proper under First Amendment analysis

I have commented before on the practice of some judges of imposing unorthodox, unusual or "creative" punishment, in lieu of applying the law, including the recent case where a judge sentenced a young man to going to church.  See here.   On the same topic but from a different perspective, here is a link to an article in the First Amendment Center arguing that sentencing someone to go to church violates the First Amendment.

Comment on the case challenging rules against non lawyer ownership of firms

Over at the Legal Ethics Forum, Nicole Hyland has published a good short comment on the recent decision to revive the case challenging the rules that ban non lawyers from having ownership interests in law firms.  You can read her comment here.

Is it unethical for an attorney to publicly disagree with a former client's interpretation of a decision issued in a case where the attorney represented the client?

Is it unethical for an attorney to publicly disagree with a former client's interpretation of a decision issued in a case where the attorney represented the client?  

In discussing a letter to the editor in the New York Times by famous attorney Floyd Abrams (available here), The Legal Ethics Forum offers some opinions on the issue.  Go here for that discussion.  

In her contribution to the discussion, Nicole Hyland explains that she does not think it is unethical as follows:

We owe a duty of confidentiality to former clients, but nothing Abrams wrote revealed confidential information. Whether we continue to owe a duty of loyalty is obviously much debated, but even if we do, I still don't see how this would violate the duty of loyalty. Attorneys have to be able to discuss legal precedent and give their interpretations of what cases mean - even their own cases. If your interpretation of the decision differs with your former client's, that can't be an ethical violation. A thornier question is whether the lawyer can later say that he disagrees with the outcome of a decision that was favorable to his former client (i.e. what if Abrams were arguing that Sullivan was wrongly decided and should be reversed?). That seems to go into the territory of a lawyer attacking his former work product.

Court of Appeals revives case challenging the ban on non lawyer ownership of law firms

Back in May of 2011, I wrote the "the next big thing" in Legal Ethics/Professional Responsibility was going to be the debate on whether non lawyers should be allowed to invest (or "own") law firms.  See my original post (with links to more information) here.  Since then, there have been lots of conferences, articles and a lot of discussion on the subject.

At that time, the issue came to the forefront because the law firm Jacoby & Meyers filed a lawsuit in New York challenging the state rules barring outsiders from owning stakes in firms arguing the rules unconstitutionally restrict interstate commerce. However, almost a year later, in March of this year, the lawsuit was dismissed.  Go here for my post on that (again, with links to more information).

Now comes news that the debate can continue...  In an order issued last week, the U.S. Circuit Court of Appeals for the Second Circuit has ruled that Jacoby & Myers can amend its complaint to challenge all provisions of New York law that bar non lawyer investment in law firms. For more on the story, you can go to The ABA Journal, The New York Law Journal, Reuters, and the Wall Street Journal Law Blog.

UPDATE (11-30-12):  there is good comment on the issue in the Legal Ethics Forum by Nicole Hyland.

How not to practice law: on appeal, prepare a lousy brief in which you don't discuss the law or support your position

Continuing our running list of examples on how not to practice law, here is a link to a brand new opinion from the Court of Appeals for the First Circuit in a case called Rodriguez-Machado v. Shinseki, (available here) in which the court (per curiam) says that "the plaintiff's briefs are textbook examples of how not to litigate a case on appeal." In support of this conclusion, the court explains that

...plaintiff's opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute... Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either.  ...Shockingly still, plaintiff's principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories...

Later, the court adds that what the plaintiff has done "is not the type of serious effort that allows us to decide difficult questions ...and doing her work for her is not an option ..."

Given the bad quality of the appeal, the court decided to dismiss the appeal with prejudice.

The court makes clear that this is a drastic measure, but that it was within its discretion to take it.  However, obviously, when the court refers to "the plaintiff" in all this, it is really referring to her lawyer.  The drastic measure the court chose to take was really against the client.  Was this really a case where the client should suffer the consequences of the ineptitude of her lawyer?  Wouldn't it be more fair for the court to take action against the lawyer while giving the client a second chance? 

UPDATE 11/26/12 (9:30pm):  When I wrote my comment above, I was commenting on the court's opinion, not on the briefs the court criticizes.  I have not read the briefs.  However, over at Litigation and Trial, Max Kennerly has - and has posted a link to them so you can read them too.  Having read them, he also questions the court's decision but for different reasons than me.  He argues that, although the briefs do make a number of mistakes, it is a bit of an exaggeration to say, as the court does, that they are so bad they “cripple any attempt to review the issues intelligently.”  You can read his full comment here.

NJ Advisory Committee on Professional Ethics recommends to abolish the notion of an attorney's retaining lien

Otherwise is reporting that The New Jersey Supreme Court has invited public comment on a proposal to abolish “common law retaining lien.”  The recommendation comes from the Court's Advisory Committee on Professional Ethics.  The Advisory Committee found the lien to be obsolete and destructive of client relations. The Notice, Report and statement of the State Bar Association are available here.  The Legal Ethics Forum adds a comment here.

Excellent comments on discovery practice and litigation management

Over at the Litigation and Trial blog, Max Kennerly has published two excellent comments on issues related to discovery and litigation management.  In the first one (here), he concludes that "when courts forbid plaintiffs’ lawyers from sharing relevant discovery evidence amongst themselves, they inadvertently enable the defendants to engage in discovery fraud by cherry-picking which evidence they produce in each case."  In the second article (here), he reviews a new article by the federal judge (and the special masters he appointed) who oversaw the 9/11 Responders litigation which reveals another critical component of a successful and fair resolution of high-stakes litigation: judges need to make sure the cases move forward.   Professional Responsibility:  A Contemporary Approach also has a comment on the article here.

Proper punishment or abuse of discretion?

I have commented before on the practice of some judges of imposing unorthodox, unusual or "creative" punishment, in lieu of applying the law.  (See here, where you will find links to more.) Some argue there is value in seeking forms of punishment that do not involve jail terms. After all, this country does have too many people in prison as it is.  However, I think it is dangerous when judges feel they can do whatever they want.

The issue is again in the news following two recent cases.  In one, a judge sentenced a woman to cook a Thanksgiving dinner for police officers (here).  In another, the judge sentenced a minor to go to church for ten years (here).  I find both episodes objectionable and disturbing.  Professor Jonathan Turley has written about this subject many times in the past and his comment on these recent cases is available here.  It reads, in part,

Forcing citizens to cook for police officers is another example of a judge who panders to the public with sentences that seem “poetic justice.” Judges know that this type of punishment is hugely popular with the public. It is a trend that is erasing the line between entertainment and the law. There has been a continuing and growing trend of this type of abuse by judges. I have written columns (here and here and here) and blogs articles (here and here and here and here and here) criticizing this worrisome trend, though the most serious such cases involve judges like Norman who try to bring “more people to Jesus” while carrying out his duties as a judicial officer. These judges make a mockery out of our court system and sit like little Caesars in meting out their own idiosyncratic forms of justice — often to the thrill of citizens.

The case of the judge sentencing a defendant to go to church is discussed in this NY Times article.

Juror sentenced to two years in jail for lying during voir dire

Last week in class we discussed the ethical issues related to perjury, including the duty not to use evidence the lawyer knows is false and the duty to take remedial measures if a client has introduced material false evidence.  As part of the discussion, I usually tell my students that prosecutions for perjury are not very common, even though we have seen some high profile ones in the last few years (Barry Bonds and Roger Clemens, for example).  Now, intent in proving me wrong, apparently, Prof. Janathan Turley is reporting on a case in which a prospective juror pleaded guilty and was sentenced to two years in jail after he was forced to admit that he lied to the court in denying that he had any relationship with any of the parties in the case. The juror actually knew two of the defendants and also had prior contact with the alleged victim.  There is really no ethics or professional responsibility angle on the case, but it is an example of a court taking the issue seriously (by both enforcing the law and by impossing a significant penalty).