Briefs in the Stephen Glass case

Earlier tonight I posted the video of the oral argument in the Stephen Glass case.  Here is a link to an article where you can find the briefs filed in the case. 

Thanks to the Legal Ethics Forum for the link.

California Supreme Court oral argument on Stephen Glass admission petition case

Earlier today, the California Supreme Court heard oral arguments on the petition for admission of Stephen Glass. The video appears below.

Stephen Glass was once thought of as one of “the most sought-after young reporter in the nation’s capital.” He was later exposed for having falsified many of the stories he wrote for important national magazines including some he wrote while attending law school. See my original comment on the case here.

Glass graduated and passed the bar exam in California but was denied admission. His application in California was denied by the Committee of Bar Examiners (CBE).This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.

The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation." There is a lot of information on this case out there. If you want to read more before watching the oral argument, take a look at my previous posts where I wrote on the case and provided links to many comments about it here, here and here.

Here is the video of the oral argument. It is about an hour long. (The video should start right when the argument begins, but I noticed that in some browsers it starts earlier. If your version does not start when the argument starts, fast forward to about the 13 minute mark.)

As always, it is difficult to predict the result of a case from the oral argument, but if I had to guess, my guess is that the Court was not too sympathetic. The appellant's argument was not perfect and it did have some weaknesses - particularly the rebuttal - but I think the judges seemed more critical of Glass' attorney's argument.

ABA issues formal opinion on whether attorneys can participate in "deal of the day" programs like Groupon

Bar associations and other state authorities have been issuing opinions on whether it is permissible for lawyers to use pre-paid discount services like Groupon to advertise legal services and attract clients. The NY Bar Association has approved participating in Groupon (see here), as have North Carolina, South Carolina and Maryland (see here).  On the other hand, the Alabama State Disciplinary Commission has ruled attorneys can't use Groupon (see here).  The Indiana State Bar Association has ruled it is probably unethical (here).

The ABA Standing Committee on Ethics and Professional Responsibility had been working on an opinion on the subject for some time and it was finally released.  It is available here.  The summary reads, in part, as follows:

Deal-of-the-day or group-coupon marketing programs offer an alternative way to sell goods and services. Lawyers hoping to market legal services using these programs must comply with various Rules of Professional Conduct, including, but not limited to, rules governing fee sharing, advertising, competence, diligence, and the proper handling of legal fees. It is also incumbent upon the lawyer to determine whether conflicts of interest exist.

The opinion explains there are two different ways in which attorneys could try to use deal of the day services:

For a lawyer, the two options described above might be illustrated as follows. Assume a lawyer charges $200 per hour for legal services. The lawyer could sell a coupon for $25 that would entitle the bearer to buy up to five hours of legal services at a fifty-percent discount; in other words, the $25 would allow the bearer to pay only $100 per hour for up to five hours of legal services, potentially saving up to $500. This first option requires the coupon bearer to make additional payment to the lawyer commensurate with the number of hours actually used. Alternatively, the lawyer could sell a deal for $500 that would entitle the buyer to receive up to five hours of legal service (with a value of up to $1,000), but all of the money would be collected by the marketing organization, with no additional payment collected by the lawyer no matter how many of the five hours of legal services were actually used. For ease of reference, this opinion will refer to option one as a coupon deal and to option two as a prepaid deal.

With these two models in mind, the opinion concludes that coupon deals can be structured to comply with the Model Rules.  However, the opinion concludes there are numerous difficult issues associated with prepaid deals and, therefore, the Committee is less certain that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.

For comments on the opinion you can check out Lawyer Ethics Alert Blogs.

Is it misconduct for a lawyer to ignore rule against including a claim for a specific dollar amount in a complaint?

Eearlier this week the New York Daily News reported on a recently filed claim alleging that energy drink Red Bull contributed to the death of a 33 year old man.  The story's headline read: “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”    Claims that energy drinks can contribute to someone's death have been circulating for some time now, so the allegation is not new.  (For more on that go here.)
 
What is interesting (for the purposes of this blog) is the fact that the complaint specifically asks for $85 million in compensation.  This is interesting because the practice of asking for a specific dollar amount in a complaint has been banned in New York (where the case was filed) for 23 years.  And yet, as NY blogger Eric Turkewitz adds, "some lawyers still put that clause in. Why? There are only two possible reasons . . . : Either the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue." 

Eric's post is worth reading here.  He goes one to argue, correctly in my view, that the emphasis on the amount of the claim detracts from the seriousness of the issue.  The story now becomes one about how much money the plaintiff's lawyer wants instead of one about whether a product is in fact dangerous or whether the defendant should change the way it markets the product.

What lawyers put in online profiles versus what clients want in profiles

This chart was created by Matt Homman and there is a comment about it in Real Lawyers Have Blogs

So you want to be a prosecutor?

Go here for some good advice.

The "meet and greet" practice of law?

The "a public defender blog" has posted a story on the reality of practice of criminal defense in some courts.  In fact, this is (obviously) not an isolated incident -remember the story that the Miami public defender's office was rejecting cases because they did not have time to manage them?   In any case, the public defender story is about a case in which the defendant was assigned a public defender who met with the client for the first time the morning of his trial, which was going to be the attorney's first criminal trial in seven years. The attorney had about 12 hours to prepare for trial.  A public defender argues that a conviction under those circumstances violates the constitution.  And he has some strong words for the lawyer who claimed he was ready for the trial under those circumstances. You can read the full post here.

Lawyers Swarm to Ghost Blogging, But is it Ethical?

The Legal Talk Network has a 25 minute podcast on the issue of whether ghost blogging is ethical here (or here).

New case on the limits of proper argument

One of the topics I cover in my class is the notion of limits of proper argument.  I assign a series of cases that discuss whether it is proper for an attorney to cite the Bible in support of an argument when addressing the jury, or to ask the jury to "send a message" by reaching a certain verdict.  Now I have a new case to discuss the issue.  The Legal Profession Blog is reporting on a recent case called State of Montana v. Ugalde in which a dissenting judge would have reversed a conviction because of the prosecutor's closing argument. The case involved a prosecution related to injuries to an infant. At the end of the trial, the prosecutor began her closing argument with a first-person narrative from the perspective of the infant, relating the State's view of what happened as though the victim was testifying on her own behalf. During rebuttal, the prosecutor then told jurors that the infant was "speaking to you" and asked the jurors to "tell the victim that you heard him and that you find the defendant guilty. I agree with the dissenting judge. His view is consistent with the other cases on the subject. Aside from being a little creepy, the prosecutor's approach was improper. Essentially, she testified for the victim who was not subject to cross examination, she played to the emotions of the jury, and she asked the jurors to "send a message." Here is what the judge wrote:

. . . I believe the prosecutor's channeling the infant-victim in closing arguments denied Ugalde her constitutional right to a fair trial. The channeling was neither brief nor harmless. It was calculated to play on the emotions and sympathy of the jury. I.N. spoke to the jurors through Pierce, describing the assault, the surgeries, how his life is no longer the same, that he no longer can tell his mother he loved her, and that he can only speak three words. Pierce asserted that “[I.N.] was the only witness, besides the Defendant, to tell you what happened to him on June 11th of 2008 .” Pierce asked the jurors to tell I.N. that they heard him and to tell Ugalde that they know what happened that day. The evidence presented at trial concerning the impact upon the eight-month-old victim and the cause of his injuries was overwhelming. But that does not justify our overlooking a prosecutor's improper closing argument that was calculated to appeal to the jury's emotions, passion, and sympathy. This tactic undermined the fundamental fairness of the trial. I therefore would reverse for plain error and remand for a new trial.

Extra!: U.S. Attorney agrees to vacate conviction after thrashing by Ninth Circuit for prosecutor's misconduct

Last Saturday I posted a video in which the Court of Appeals for the Ninth Circuit severely criticized the conduct of a district attorney who based an argument on facts not in evidence.  At the end of the oral argument (by a different prosecutor) one of the judges suggested that the prosecutor go back home and watch the tape of the argument with the prosecutor in question and simply confess to the conduct and stop trying to justify it or explain it or claim it was harmless error.

Well, apparently they did just that, as Seeking Justice reports, "no doubt to avoid a scathing decision from the Court."

Here’s the government’s four paragraph motion to vacate the conviction and remand the case. Seeking Justice summarizes it as simply saying "We’ve all reviewed it, our prosecutor was wrong, and we will use the video to teach prosecutors the bounds of proper closing argument."

That is a good thing, I guess, and hopefully they will take it seriously in the future.