What to do if attorney discovers child pornography in a computer that belongs to a member of a corporate client

Prof. Monroe Freedman has posted this interesting question at the Legal Ethics Forum:  A lawyer who represents both civil and criminal clients is at the offices of a corporate client he is representing in a civil matter.  While he is there, the lawyer gets permission from a VP of the company to use the VP’s computer  (which belongs to the corporate client) to check the lawyer’s email.  In using the computer, the lawyer inadvertently discovers that it contains pornographic pictures of sexual abuse of children.  The VP is not the lawyer’s client, and the VP has no reason to believe that he is.  The pornography is unrelated to the client’s business.  What should the lawyer do?  Go here for the discussion.

Unbundling legal services: not as easy as it sounds

Last February, I reported that the ABA approved a resolution encouraging lawyers to consider providing unbundled legal services when appropriate.  See here.  According to a report accompanying the resolution, such representation can increase access to legal services. 

I have expressed my doubts about the concept of unbundling of legal services and I am not sure what all the brouhaha is about (see here).  Likewise, here is a comment on why unbundling is not as easy as it sounds.

Canada Supreme Court clarifies rules re conflicts of interests

Some time ago, there was a debate as to whether the ABA Model Rules should be amended to allow for screening in cases of concurrent conflicts of interests if the interests of the clients involved were not related.  That view was (correctly, in my opinion) rejected and the debate has since died down.  The rule, thus, remains that a lawyer may not act for clients with directly adverse legal interests, even in matters that are unrelated. Interestingly, the Canadian Supreme Court recently clarified its position on this subject, making it clear it agrees with the ABA Model Rules approach.  Go here for more on the story.

How not to encourage ethical conduct: Oklahoma Supreme Court holds that the proper sanction for misconduct is what it would have been back when the conduct ocurred

If you follow this blog you know that I have often commented on how courts do not seem to do enough to punish unethical conduct by prosecutors. (Most recently, here.)  With that in mind, I find the reports on a recent decision by the Oklahoma Supreme Court very troubling.

As reported by Prof. Jonathan Turley the court rejected a request from the state bar association to disbar a former assistant district attorney for Oklahoma County for egregious misconduct in two capital cases. Here is a key passage that summarizes the court's conclusion:

Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension. Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though  [it] may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, [the prosecutor's] actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all. 

This is, in short, absurd.  Anyone who knows anything about professional responsibility knows that there has always been a problem with sanctions being inconsistent among and within jurisdictions, particularly when it comes to prosecutors.  Also, anyone paying attention knows prosecutorial misconduct is a huge problem in this country.

The question should never be whether the sanction to be imposed is what would have been imposed back when the conduct was committed.  The question is whether the conduct was unethical.  Period.  It was.  In fact, the court admits it was reprehensible.  To hold as it does provides an excuse for reprehensible conduct - as long as others were engaged in like conduct at the time or as long as the actor can hide it long enough to say it happened back when a lot of people were engaged in it.  Using this logic, today's unethical prosecutors could avoid harsh sanctions in the future since prosecutors today are also not getting the sanctions they deserve.

Once again, I sound like a broken record:  why do we have so much prosecutorial misconduct?  Because courts are unwilling to take it seriously and do something meaningful about it.

Fortunately, not every member of the Oklahoma Supreme Court was willing to go along with the majority's absurd view. Justices Taylor and Watt dissented, stating:

Whether it was “decades ago” or today, no attorney should ever commit the “reprehensible” conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

 You can read Prof. Turley's criticism of the court's opinion here.

For my previous posts on prosecutorial misconduct, go here and scroll down.

Advice against public policy

As everyone knows, it would be unethical for an attorney to assist or advise a client to commit a crime or a fraud.  But did you know it may be unethical to assist the client engage in conduct that a court might consider against public policy?  This is the conclusion of a recent case from Indiana in which the Indiana Supreme Court held lawyers could not assist or advise clients in negotiating away parenting time as a means to elimate the obligation to pay child support.  The court found such notion to be "repugnant and contrary to public policy" and held that attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. The case is Perkinson v. Perkinson and it is available here.

Thanks to the Legal Profession blog for the link.

What to do when a witness lies

Every law school professional responsibility textbook has a section on what to do when a client lies.  We all cover that material, but when we do, we usually use cases that involve the duties of a criminal defense lawyer.  Which is why I think this recent post is a must read for everyone interested in the topic.  The author is a prosecutor in New York and his blog is very good. 

Update on the Zimmerman prosecution

Jonathan Turley has an update here in which he argues that the "prosecutors in the George Zimmerman trial are facing a collapsing case and renewed question over whether Angela Corey succumbed to the political pressure and overcharged the case. The prosecution’s case has thus far been a disaster and many are now questioning whether charges should have been brought at all, let alone charged as second degree murder"

A new frontier for lawyer advertising: "keyword advertising"

The Florida’s State Bar's “Standing Committee on Advertising,” has recently proposed that it is “deceptive and inherently misleading” for one lawyer to buy keyword advertising triggered on another lawyer’s name.  Go here for the story and for an argument supporting the view that the proposed ban is not a good idea.

Yale Law Journal Symposium on Right to Counsel Fifty Years after Gideon v. Wainwright

The Yale Law Journal's final issue of the academic year is a thorough symposium called: "The Gideon Effect - Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright." It is over 600 pages of articles by 25 leading authors. It is available in print and also for Kindle (Amazon) and Nook (Barnes & Noble) devices.

One of the articles is by a friend on mine, Bruce Green, a professor of legal ethics at Fordham University School of Law.  His article is called Gideon's Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?  Here is the abstract:

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer — a right that is fundamental to a fair trial and to avoiding wrongful convictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture?

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture? Go here for a discussion on the issue.