Follow-up on the story about the prosecutors in Senator Steven's case

Yesterday I reported and commented on the fact that an administrative judge has overturned the suspensions of the prosecutors who engaged in prosecutorial misconduct in the prosecution of the late Senator Ted Stevens.  See here. As you would expect, others are now commenting on the issue too.

Professor Jonathan Turley has a comment here.  He argues, in part, as follows:

The Justice Department has long been accused of whitewashing misconduct of its own prosecutors and rarely acting on acts of prosecutorial misconduct, including common complaints of federal prosecutors withholding evidence and making misrepresentations to counsel or the courts. Even in high profile cases of misconduct, the Justice Department often drags out investigations only to later quietly end them without sanctions.. . .

The result is that even this mild punishment will now be tossed out in one of the Department’s most damaging scandals. With the earlier sweeping DOJ finding in favor of the litigation team, the result is all too familiar for those who watch the department. Since the suspensions were viewed as laughable by most objective viewers, the ruling is not going to generate much discussion. What should be the focus is the continuation of the Justice Department’s record of insulating its attorneys from discipline for even the most egregious forms of misconduct. The result of such cases sends a clear message to the rank and file attorneys that they have little to fear from allegations of misconduct.

Over at the Legal Ethics Forum, John Steele comments that "[a]s I've seen the DOJ's internal discipline process play out, I've wondered why the DOJ does the disciplining of the DOJ lawyers. The process seems plagued by cozy insider-ism punctuated by the occasional burst of politically inspired discipline. I suppose there's no one else who can do the disciplining" Read the comments here.

The Blog of the Legal Times also has more details on the story here.

Judge overturns suspensions of prosecutors in Ted Stevens' case

Long time readers of this blog will remember I have been following the story about prosecutorial misconduct in the prosecution of the late Senator Ted Stevens and that I have posted numerous comments and links on it.  To access those, type "Stevens" in the "search this blog" box on the right side panel.

As you may recall, back in 2011, a court-appointed investigator found that the prosecution was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. See here.  However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence. I criticized this report here. I argued that it was inconceivable that a report could find clear and intentional misconduct and then not recommend sanctions. 

Contrary to that criminal investigation, however, the Department of Justice's own investigation did not find that the prosecutors acted intentionally and for that reason the prosecutors were sanctioned merely with suspensions without pay (one for 40 days and one for 15 days), which I argued was a joke.

Now the joke is even worse, as an administrative judge has overturned the suspensions.  As reported in the New York Times, in a 29-page ruling released late Friday night, the administrative judge ruled that the Justice Department violated its own procedures on whether professional misconduct had occurred.  This is just the latest chapter on the comedy of errors this case has become.

Florida opinion on website design and search engine optimization

As reported in Legal Ethics in Motion:

On March 5, 2013, the Florida Bar Standing Committee on Advertising issued a Proposed Advisory Opinion that addressed the use of misleading “content or techniques in the design and optimization” of attorney websites. The Committee wrote that while website design, content, and search engine optimization are acceptable marketing techniques, “deceptive or inherently misleading advertising” is prohibited under the new Florida advertising rules, specifically, Rule 4-7.13. The opinion included several examples of how website optimization crosses the line including examples of deceptive “hidden text,” “meta tags,” and purchased advertising such as buying Google Adwords. The Committee concluded by reminding attorneys that if they outsource their website design or optimization, they should take steps to assure that the website designers and optimizers are conscious of the Rules Regulating the Florida Bar.

Out of control judge suspended until 2017

You may remember my previous posts on a video in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties. See here (includes the video), here, here and here.  Not surprisingly, it was later determined that the conduct had not been an isolated incident.  The claim against the judge was eventually decided by a Commission on Judicial Ethics and The ABA Journal is now reporting that the state Supreme Court has affirmed the decision.  The Opinion is available here.  It concludes that the judge should be suspended for the rest of his term - until December 31 2016.

Oregon Bar Issues Ethics Opinion on Accessing Information on Social Networking Website

The Oregon Bar has published an ethics opinion addressing the following specific questions:

1. May Lawyer review a person’s publicly available information on a social networking website?

2. May Lawyer, or an agent on behalf of Lawyer, request access to a person’s non-public information?

3. May Lawyer, or an agent on behalf of Lawyer, use a computer username or other alias that does not identify Lawyer when requesting permission from the account holder to view non-public information?

The opinion is available here.  Go here for more information and links to opinions from other jurisdictions on the same or similar topics.

Even more comments on the right to counsel

 A few days ago I posted a few links to articles commenting on the 50th anniversary of the case that recognized the right to counsel in criminal cases and the state of access to counsel by indigent defendants.  Unfortunately, as I said in my previous post, much coverage focuses on the unfulfilled promise of access to representation.  Here are a few more links: 

ReligiousLeftLaw:  The 50th Anniversary of Gideon v. Wainwright

The PopTort:  Gideon, Legal Aid and Contingency Fees

Blog of the Legal Times:  Kagan, Holder Address the Five Decades Since Historic Gideon Decision

The Huffington Post: Gideon v. Wainright 50th Anniversary: Serious Problems Persist In Indigent Legal Defense

More comments on the state of the right to counsel

A few days ago I posted a link to an editorial in the NY Times on the state of the right to counsel (here).  As we celebrate the 50th anniversary of the case that recognized the right to counsel in criminal cases, a few other comments on the subject have been published.  Sadly, the common theme in all of them is that even though there is a right to counsel, poor defendants still have inadequate access to representation.  The New York Times published an article called Right to Lawyer Can Be Empty Promise for the Poor.  Meanwhile, NPR featured  a segment called 50 Years After Key Case, Problems Defending The Poor Persist.

Claiming the client made you do it will not save your license

The Legal Profession blog is reporting on a case that reiterates an important lesson for all lawyers.  Lawyers can't blame their clients for misconduct.  Lawyers have a duty to exercise independent professional judgment which, in some cases, may require the lawyer to quit, get rid of a client, talk the client out of a proposed course of action or taking other preventive or remedial measures.

In this new case, the disciplinary authorities believed the attorney when he testified that he was "used" or "led down the wrong path" by his employer, which the lawyer characterized as an unscrupulous real estate development company.  The lawyer testified that, among other things, the client forged his name on checks. The lawyer testified to his remorse, his efforts to make his victims whole, and the fact that he did not misappropriate any funds for his personal use and realized no monetary gain from the subject transactions.

That was all fine, but the attorney was still suspended for two years by the New York Appellate Division for the Second Judicial Department. The court noted that the lawyer knew that his conduct was improper but took no action to blow the whistle or to step down from his position as in-house counsel with the company. Rather, he knowingly allowed his services to be used by another to perpetrate a fraud.

New case holding it is improper to represent buyer and seller in same transaction

Here is a link to another case holding it is improper to represent the buyer and seller in the same transaction.

Washington DC to decide whether there is a civil liability duty to non clients

Under what circumstances should an attorney have a duty in tort toward the affiliates of an entity client? 

The question is now before the District of Columbia Court of Appeals.  The case involves a claim by Boston-Maine Airways Corp. against a law firm that represented its sibling companies and a shared owner.  After a District of Columbia Superior Court judge granted the law firm's motion for summary judgment, finding that Boston-Maine failed to prove that Sheppard owed them any care, it appealed arguing that the firm's representation of its sibling companies meant the firm couldn't take actions that would harm members of the corporate family. For a more detailed summary of the case and the issues go here.

My guess is that the court will follow the analysis suggested in the comment to Model Rule 1.7 on conflicts of interest.  Even though the issue is different, the analysis is helpful.  According to the Rule's approach, lawyers who represent entities do not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary of the entity.  For this reason, an attorney for an entity is not barred from accepting a client whose interests are adverse to an affiliate of the entity client in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, or there is an understanding between the lawyer & the entity client that the lawyer will avoid accepting new clients in those circumstances, or if the lawyer’s obligations to either the entity client or to the new client are likely to materially limit the representation of the other client.