Yet another judge finds that government lawyers committed egregious misconduct

Just a few days ago I posted links to articles and editorials commenting on the many cases where judges have found prosecutorial misconduct.  This week the Blog of the Legal Times is reporting on yet another case involving misconduct of government lawyers.  In this case, a litigation that challenges how the Federal Bureau of Prisons treats inmates classified as terrorists, the judge stated that lawyers in the U.S. attorney's office in Washington committed "egregious misconduct" in their handling of discovery.  Go here for the full story.

Possible liability for referring a case to another attorney?

Just as with everything else, when an attorney refers a case to another attorney there is a duty to use reasonable care.  Here is a short review of the issue.

Ohio lawyers are not prohibited from soliciting potential clients via text messages

Is it ethical for attorney's to solicit clients by "texting"?  There has been some discussion on this recently and here is a post arguing against it. The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules. I think texting does result in more of an invasion of privacy than regular mail or e-mail. Also, it can result in a minimal financial burden on the person who receives the message. However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The issue was in the news recently because of an Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages. The Advisory Opinion is available here and discussed here.

Are law firms buying bogus likes and followers?

Links to the story over at the Legal Ethics Forum.

Complying with Brady, from the prosecutor's perspective

There has been a lot of discussion of prosecutorial misconduct (here and elsewhere) during the past few years and most of it relates to prosecutors' failing to disclose evidence as required by Brady v. Maryland.  And, as readers of this blog know, I have been extremely critical of prosecutors who violate their duties and of judges to let them get away with it.  But we have not heard much from the prosecutors' perspective; so I was glad to see Prosecutor's Discretion, a prosecutor's blog I like to follow, post a comment on that.  In it he describes how sometimes the issue is not so clear cut.  Sometimes, there are multiple issues to consider and the choices the prosecutor has to make are not as easy as they might seem.  You can read the comment here.

Washington Post joins NY Times and Los Angeles Times on prosecutorial misconduct

Just a few days ago I commented on recent developments related to prosecutorial misconduct including links to articles in the New York Times and the Los Angeles Times.  Today, Seeking Justice is announcing that the Washington Post has added its voice to the chorus.

NY Times editorial on programs designed to provide access to counsel to indigent defendants (and one response)

A few days ago, The New York Times published an editorial commenting on the need for states to provide alternatives to meet the needs of indigent defendants.  It discusses a model which uses "vouchers" that allow defendants to choose their representation.  Professor Stephen Gillers comments on that proposal here.

California Supreme Court rules that undocumented resident has a right to a law license

Since 2012, I have been following a case in California on whether an undocumented immigrant should be allowed to practice law.  Go here for links to many of those posts.  Here is a link to the oral argument before the California Supreme Court, soon after which the California legislature passed a bill on the issue which was promptly signed in to law.

Last week, the California Supreme Court issued its decision on the case holding that the candidate has the right to the law license.  I have not read the opinion, but according to reports, the court holds that the fact that practicing law by an undocumented immigrant might result in some violations of the law is not a bar to licensing.  For links and comments go to the Legal Ethics Forum and the Legal Profession Blog.

Chief judge of the 9th Circuit Court of Appeals warns of "epidemic" of Brady violations by the Justice Department

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. (Go here and scroll down for all my posts on the subject of prosecutorial misconduct.)  Last October, however, I posted a story (which I started with that same first sentence) about how "luckily, there is one court that is doing its part: the Court of Appeals for the Ninth Circuit."  In that story, I wrote about an oral argument (the story has a video of it) and a recent opinion.

Unfortunately, the latest on the subject from that court is not so encouraging. Last month it was reported that the court voted overwhelmingly to deny a rehearing in United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. Chief Judge Kozinski (joined by four other judges), however, issued a dissenting opinion opposing the denial of the rehearing. He begins the opinion with a sentiment I have been repeating for as long as I have been commenting on prosecutorial misconduct: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”  The dissenting Opinion is available here.

The case and the opinion by Kozinski have generated much commentary. For more information and comments go to:  Jonathan Turley, Seeking Justice, The Legal Ethics Forum, Seeking Justice, again, Huffington Post, The Los Angeles Times, and The New York Times,

The underlying problems in this case, like in so many others, deal with two related issues:  the extent to which a prosecutor has a duty to disclose material to the defendant and how to determine if a conviction should be reversed because of Brady violations.  Typically, courts will say that, under Brady, prosecutors have a duty to disclose evidence that is favorable and material.   Many jurisdictions, and the ABA, have adopted rules that impose a broader duty to disclose; others have denied that the rules impose a broader duty.

In this particular case, the Circuit Court found that the information in question was evidence favorable to the defendant and that it had not been turned over to the defendant's attorneys, but the court also determined that the evidence wasn't material.  And, having decided that the evidence wasn't material, the court did not decide whether the prosecutor engaged in misconduct.

To this, Kozinski reacted as follows:   "The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

This is a very important issue and I am going to take the chance here to predict that it will one of the hottest topics in Professional Responsibility circles this coming year.

Top Ten Stories of the Year

John Steele, of the Legal Ethics Forum, has posted has posted a great list of top stories of the year here.  It is definitely worth a look.  

There is also a "Top Stories List" on Canadian Professional Responsibility here, and one top story on the international front (here).