Death Row inmate's lawyers move to disqualify entire Attorney General's office from representing the state in appeal

Last month, the lawyers for New Hampshire’s only inmate on death row filed a motion to disqualify the entire Attorney General’s office from handling the state's reply to his appeal after the office hired a key member of inmate's defense team.  They argued that former public defender Lisa Wolford, who worked full time on the case in 2009, took at least one confidential document with her when she joined the Attorney General’s office last summer as an appellate lawyer.  If this allegation is proven and the AG's office did not have a screen established before Ms.  Wolford joined the office, it is possible the state will have to find someone else to represent its position.  But, I have not seen any reports on the outcome of the motion.  The Boston Globe has the story here.

Thanks to George Conk for the link.

Washington DC's notion of moral turpitude apparently does not include holding a minor as a sex slave

If you are a long time reader of this blog, you know that I have asked before for an explanation as to the notion of moral turpitude in Washington DC.  Today I read about a new particularly disturbing case that raises the question again.  In the past, I commented on a case where it was determined that the conduct of a lawyer in lying, cheating and stealing money was not considered to be moral turpitude because it was not "dishonesty with intent for personal gain."  See here.  I could not understand how it could not be, but that was that.  Then there was the case where it was found that tampering with a witness was considered moral turpitude per se which resulted in disbarment (here).  OK.  I have not problem with disbarring an attorney that engages in that conduct, but is that really moral turpitude?

Today, however, the Legal Profession blog published a note about a case in which an attorney who was convicted of felony traveling for the purpose of engaging in sex with a minor was found not have engaged in conduct involving moral turpitude. According to an account of the case, the attorney had made a 12-year-old boy his sex slave for six years....he will spend the next 15 years behind bars. And this is not "moral turpitude" per se?

The Legal Profession blog reports that the disciplinary board's lawyer members (except one recusal and one not participating) concluded that the conduct did not constitute moral turpitude per se, and therefore that there should be a hearing to determine if it was moral turpitude under the circumstances.

What a waste of resources!  Someone please explain to me under what circumstances it can possibly be thought that traveling abroad to engage in sex with a minor, bringing the minor back to the US and then holding him as a sex slave could NOT be conduct involving moral turpitude.

The Board should have held that this was moral turpitude per se and disbarred the attorney.  Period.

The only non lawyer members of the Board dissented.  Good for them.

The Legal Profession blog has the full story here.

Iowa Supreme Court recognizes claim for emotional distress caused by attorney's malpractice

I have never understood why it is so difficult for courts to recognize claims for emotional distress in cases where the plaintiff does not suffer physical injuries. Is it really that difficult to believe that someone can suffer emotional distress due to someone's conduct absent a physical injury?   Assume an attorney's malpractice causes a client to lose his house, or custody of his children or to be separated from his children for years.  Is it really that difficult to believe that the attorney's negligence can cause emotional distress?

I don't think so.  As long as we recognize that emotional distress is a distinct type of injury that can result from negligent conduct, it is difficult to argue that a plaintiff should not have the right to bring a claim as long as he or she can support the elements of the cause of action.

Following this type of reasoning, the Iowa Supreme Court recently held that a couple from Ecuador may sue their attorney for emotional distress because his advice caused them to be separated from their children and grandchildren for a decade.  It’s the first time the state’s high court has allowed an attorney to be sued for emotional distress and punitive damages in a malpractice case.  Go here for more on the story.

Conviction reversed because of prosecutorial misconduct

The New Jersey Supreme Court has reversed a conviction because a state prosecutor's office violated its post-indictment discovery obligations when its investigator destroyed his notes of a two-hour pre-interview of a defendant.

Thanks to the Legal Profession blog for the link.

DC gets tough on prosecutors for misconduct

I have complained repeatedly on this blog about how regulatory agencies and courts do not take prosecutorial misconduct seriously enough; about how prosecutors are rarely disciplined, etc.

Finally, I have a chance to report a case where the exact opposite is true.  The Legal Profession blog is reporting that the District of Columbia Board on Professional Responsibility has recommended a suspension of 30 days of an Assistant United States Attorney who had failed to provide a witness statement to the defense.

The reason the case is noteworthy is that Bar Counsel had recommended a public censure.  The board noted that cases where the board imposes a sanction that exceeds that sought by Bar Counsel "should be the exception, not the norm" but it found this to be such a case because, according to the board, the prosecutor's violation of Rule 3.8(e) was blatant. He failed to disclose exculpatory information that was obviously material. The board also stated that a suspension will serve as a more effective deterrent than the public censure recommended by Bar Counsel and the Hearing Committee and is an appropriate measure of the seriousness of Respondent's misconduct. I think 30 days is still too light, but I am certainly happy to see that the Board rejected the ridiculous recommendation of the hearing committee and bar counsel. The case is in In re Andrew J. Kline, No. 11-BD- 007, and is available at this link.

Is this the beginning of a trend?  It is hard to say, but last year, the Court of Appeals disbarred a former prosecutor for Brady violations. Prior to that, public discipline had never been imposed in the District of Columbia for Brady-type misconduct.

Whatever it is, it is a good example for other jurisdictions to follow.  The Legal Ethics Forum has more on the story (and more links) here.  The Blog of the Legal Times has more (and links) here.

Alaska limits prosecutorial discretion to enter into plea bargaining in some cases

"A Public Defender" is reporting that Alaska has decided to limit prosecutorial discretion to negotiate plea agreements in certain types of cases.  Go here for the details.

Article criticizing decisions that found converstations within a firm regarding possible malpractice are privileged

Last month I reported that the Massachusets Supreme Court recently found that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  See here.  A few days later, Georgia reached the same result.  See here.   The Legal Ethics Forum had a debate  on the issue here and here.  Now, thanks again to the LEF, here is a link to an article by Richard Zitrin (professor at UC-Hastings) criticizing the decisions which he refers to as bad for clients who expect loyalty from the firms they employ.

How not to practice law: ask client to pay for legal services with sex

Here is the most recent addition to our running list of examples of how NOT to practice law. This is one we have seen before and it should be pretty obvious... but it continues to happen. Go here for the full story.

Connecticut Law Tribune editorial on prosecutorial misconduct

I often complain that courts do not take prosecutorial misconduct seriously enough.  To its credit, The Connecticut Law Tribune does.  It recently published an editorial, criticizing all the arms of the criminal justice system for their complicity in repeated instances of prosecutorial misconduct during closing arguments by Connecticut prosecutors.

Thanks to "a public defender blog" for the link. Go here for their comments on the article.

Criticism of District Attorney following Zimmerman trial

Jonathan Turley has posted his opinion on the conduct of the District Attorney in charge of the Zimmerman prosecution.  He states that the DA's office "stands accused of serious allegations of withholding evidence from the defense. I have previously said that I view those allegations as highly credible and worthy of sanctions. She is also facing a whistleblower lawsuit after she fired an IT specialist who revealed that her office was withholding evidence in the Zimmerman case" and concludes that "[a]t a minimum, [the DA's] actions and comments strike me as highly unprofessional." Read the article here.