Maryland Disbars Attorney For Accusing Judges of Misconduct in Emails. Was it justified?

Disbarring the Critics is reporting that in late February, the Maryland Court of Appeals disbarred a long-time Maryland attorney for alleging in emails that several Maryland judges had engaged in misconduct. The decision, Attorney Grievance Commission v. Frost, is available here.

Disbarring the Critics has a long comment on the case here, in which it concludes: "Make no mistake about it, the the justices on Maryland's highest court were not taking the action they did to protect the public, but were instead acting to protect their colleagues from what they believed to be unfair criticism by Frost. Undoubtedly those judges also know that the Frost case will be a warning shot to let other Maryland attorneys know that if they dare to criticize a judge publicly or privately they can be targeted for discipline."

Former rapper turned lawyer's ad goes viral

Just when we thought we had seen the worst attorney ad of the year during the Super Bowl (see here and here), in comes an internet commercial for a lawyer in the Pittsburgh area.  You can watch it below.  It speaks for itself.  But to give you a hint of how it has been received, here is a quote from the blog Res Ipsa Loquitur: "The advertisement is clearly tongue-in-cheek but in the end I find it less than comical. Muessig [the lawyer] promises to help felons get back to crime and proclaims that he “think like a criminal.” It fulfills the worst stereotypes of criminal defense lawyers as felons are shown committing crimes and saying “Thanks, Dan.” Muessig may have a skill for thinking like a criminal but he clearly has yet to master the talent of thinking like a lawyer."  You should read the full comment here.

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Tom Loftus, spokesman for the Allegheny County Bar Association, said he found the ad "insulting to Pittsburgh lawyers and lawyers across the country, who take great pride in their profession."  Without more, of course, that is not enough to justify the state to ban the ad or to discipline the lawyer.  In the end, the issue here is not whether the state has the authority to intervene, but whether it is really a good idea for the lawyer to engage in this type of campaign. Just because you have the right to do something does not mean you should do it.  For more comments on the ad go here, here and here and check out the short video below.

Controversial Supreme Court decision on asset forfeiture and access to legal services

About two weeks ago. the Supreme Court decided a case that has important implications on a criminal defendant's access to legal representation.  The case is called Kaley v. US and the opinion is available here.  You can also find links to the lower court's opinion and many other documents in the case here.

An editor of the SCOTUS blog summarizes the facts as follows:  "In 2007, Kerri Kaley and her husband, Brian, were indicted on charges arising from a plan to steal and then re-sell prescription medical devices. Based on the indictment, the federal government also got a restraining order to freeze their assets. The Kaleys asked the district court to lift the asset freeze so that they could pay their lawyers: although they did not dispute that the frozen assets could be traced to the conduct for which they were indicted, they argued that the charges against them were “baseless.” Both the district court and the U.S. Court of Appeals for the Eleventh Circuit denied the request, holding that it was prohibited because the Kaleys had no right to a hearing to challenge the grand jury’s determination that there was probable cause to support the charges against them. This morning a divided Supreme Court agreed, preserving a frequently used tool in the government’s arsenal for prosecuting crimes."  This author's analysis of the case is available here.

In the days that followed the announcement of the decision a number of very critical reviews have been published.  The White Collar Crime Prof Blog, for example, concludes that

The opinion, written by Justice Kagan, exalts the inviolability of the grand jury and demonstrates a naive misunderstanding of (or lack of concern about) the reality of its role in the determination of probable cause, ignores the presumption of innocence, and denigrates the importance of independent defense counsel in the criminal justice system. It tilts the playing field of justice in the government's favor by giving the government, in some cases, the option to deprive the defendant of the counsel he has selected or intends to select. [You can read the full comment here.]

Likewise, Simple Justice states:

In considering the Court’s adherence to beloved legal fictions, one of which is that a grand jury indictment conclusively proves the existence of probable cause to believe that a crime occurred and the defendants committed the crime, the majority reduced the issue before it to an absurdity. What about the presumption of innocence? What about the right to counsel of choice? What about the constraints of forfeiture to the proceeds of crime?  [You can read the full comment here.]

CT Law Tribune article on prosecutorial misconduct

Here is a link to a good article in the Connecticut Law Tribune about prosecutorial misconduct.

Florida Supreme Court rules illegal immigrants can't be admitted to practice

As you probably remember, back in January the California Supreme Court issued a long awaited decision holding that an undocumented immigrant should be allowed to practice law. Go here, here and here for older posts on the case, including a link to the oral argument.

A similar case had been making its way through the courts in Florida and today the Supreme Court issued its decision reaching the exact opposite result, holding "that unauthorized immigrants are ineligible for admission to the Florida Bar." Thus, applicants are required to demonstrate that they are legally present in the United States.  One of the judges concurred "reluctantly."  Go here for a copy of the opinion.  The Legal Profession Blog has more.

New York changes its regulations on contingency fees

Eric Turkewitz, of the NY Personal Injury Law Blog, reports on an amendment to the New York rule that describes how contingency fees should be calculated.

UPDATE on the proposed amendments to the Florida rules

Earlier today I posted a comment about proposed changes to the rules in Florida.  See here.  I just received the proposed new text and here are my comments.

First, the rule will use the following definitions:

(A) Retainer. A retainer is a sum of money paid to a lawyer to guarantee the lawyer's future availability. A retainer is not payment for past legal services and is not payment for future services. 

(B) Flat Fee. A flat fee is a sum of money paid to a lawyer for all legal services to be provided in the representation. A flat fee may be termed "non-refundable."  

(C) Advance Fee. An advanced fee is a sum of money paid to the lawyer against which the lawyer will bill the client as legal services are provided.

The choice of words is interesting.  The proposal is using the word "retainer" to mean what other jurisdictions call a "classic retainer" while it is using the words "advance fee" to define what others call a "security retainer."

The Comment to the rule explains the analysis related to the issue of whether a fee can be non refundable:

     A lawyer may require advance payment of a fee but is obliged to return any unearned portion. . . . A lawyer is not, however, required to return retainers that, pursuant to an agreement with a client, are not refundable. A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer's trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned. Nonrefundable fees are, as all fees, subject to the prohibition against excessive fees.

Although I am not totally convinced the language used in the definitions is the best, as I said in my previous post, I think the analysis this proposal is much better than the one offered in many of the cases that have been decided on this issue.

Florida Bar of Governors proposed amendment to clarify the concept of flat fees and retainers

I have often complained about the confused state of the law as it relates to the notion of non refundable "flat fees" which in many jurisdictions converts the flat fees into security retainers.   Go here for an example of the problem and here and here for more.

Into this mess, now comes the Florida Bar Board of Governors which has proposed an amendment to Florida's Rule 4-1.5.  The amendment states that non refundable fees are considered earned on receipt and must not be placed in lawyers’ trust accounts.  I have not seen the exact language of the proposal (I requested a copy here).  However, I can say that I think saying that non refundable fees are earned on receipt seems like a good idea, but only as long as the total amount of the fee remains reasonable, which is the accepted standard to evaluate any fee's ethical validity.

According to Lawyers Ethics Alerts, the proposed language in the comment to the rule provides: “A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer’s trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned. Nonrefundable fees are, as all fees, subject to the prohibition against excessive fees.”

Client Red Flag Bingo

As all practicing lawyers know, it is important to listen carefully to prospective clients.  It is important to understand their concerns, the details of their concerns and what it is they want us (the lawyers) to do for them.  It is also important to determine if they can be "problem clients."  That's right, "problem clients."  We all know them and often we don't realize they are a problem until it is too late.  But there are many ways to pick up on the signs early on.  There are a few obvious red flags we can learn to spot quickly.  

My favorite is the client who begins an interview by complaining (or, worse, insulting) their former lawyers.  Red Flag!  That idiot lawyer who did not know what he or she was doing the prospective client is complaining about could be you some day.  

Learning to recognize the signs of a problem has always been part of the learning curve of all new lawyers, but now there's help.  Thanks to this wonderful chart prepared by L. Maxwell Taylor and discussed over at MyShingle.com, you too can learn to spot the reg flags.  Read the chart carefully and keep it handy.  Fill a spot during an interview and you will know how to handle it.  Fill more and you are warned.  Fill a full row, and you should probably consider asking the client to Go!

How not to protect confidential information: throw your client files in boxes where anyone can find them and read them

The Legal Profession blog is reporting that the Indiana Supreme Court has imposed a suspension of not less than two years without automatic reinstatement on an attorney for, among other things, discarding client files without protecting the confidential information in them.  According to the story:     "When moving his office location in 2009, Respondent threw several client files containing confidential client information into a trash bin, where they remained for several days. A newspaper reporter found information in the files relating to paternity and divorce cases, as well as Social Security numbers and financial records."

The court found the conduct violated the duty of confidentiality because he attorney revealed confidential information in violation of rule 1.6(a).  However, it does not sound like the attorney intended to reveal the information.  He was just careless about it.  Applying 1.6(a) under the circumstances means that the attorney's negligent handling of the files is enough to support a finding of a violation of the duty.  Or, in other words, that an accidental disclosure is, by itself, evidence of a violation of the duty.

This would not necessarily be the case under the most recent version of Model Rule 1.6.  This version recognizes two different duties:  under 1.6(a) attorneys have a duty not to purposely disclose confidential information, while under 1.6(c) attorneys have a duty to take reasonable measures to prevent inadvertent or unauthorized disclosures.  This means that an accidental disclosure, by itself, does not mean the attorney violated the duty of confidentiality.  

Applied to the facts of the Indiana case, however, I think the result would be the same because the attorney could not even argue he meets the lower standard.  Clearly, he did not take reasonable measures to protect the confidential information in the files.