Yesterday, the Court of Appeals for the 7th Circuit dismissed a settlement agreement reached in a class action case citing a laundry list of what it said were conflicts of interest on the part
of the plaintiff lawyers and inequities in the agreement itself, which the court called "scandalous."
“Class counsel sold out the class,” Judge Richard A. Posner wrote for a
three-member panel of the court. The case is called Eubank v. Pella Corp. and the opinion is available here. The Legal Ethics Forum has links to comments on the story here.
Unfortunately, issues of inequities in class action representation are not a new problem. Richard Zitrin and Carol Langford have a very good chapter on the subject in their book "The Moral Compass of the American Lawyer."
Wednesday, June 4, 2014
New Jersey Appellate Court holds that a convicted criminal defendant does not have to show innocence to support a malpractice claim (if the defendant pleaded guilty)
As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime. However, there are a few jurisdictions (last time I checked it was four) that have decided there is no need to show actual innocence.
A new case from New Jersey addressed the issue and found no need to show actual innocence while suggesting the requirement should still apply to most cases. The court tries to make a distinction; but I don't buy it.
In this case, Cortez v. Gindhart, the defendant pleaded guilty to criminal charges but later brought a malpractice claim based on his trial counsel's alleged failure to follow up on the government's suggestion of a possible plea deal. The lower court dismissed the complaint based on precedent cases in the jurisdiction that required the showing of actual innocence. The Appellate Court, however found that those cases did not apply and held that the actual innocence requirement is not a requirement in all cases.
The court found that the issue was different because in the older cases, the plaintiffs (former criminal defendants) had claimed they were wrongfully convicted as a result of their public defenders' negligence while in Cortez the plaintiff had admitted his guilt.
According to the court, the claimed injury in Cortez is different because as a result of the alleged negligence, Cortez was deprived of an opportunity to accept a more favorable plea offer and, as a result of that deprivation, he received a harsher sentence. Based on this, the court then concluded that there is no need for proof of innocence because “negligence in the discharge of duties for a client who pleads guilty may result in actual injury to a client even if guilty.”
I don't find the distinction convincing. What the court is suggesting is that if a person is guilty of the charged crime, and they get convicted, they got what they deserved. But what they deserved was a negligent free representation and if they can show that they would not have been convicted but for the negligence then they did suffer an actual injury even if they were guilty.
Assume for example that a criminal defendant is guilty of possession of an illegal substance. He is guilty because he did, in fact, had the drugs in his possession, but for whatever reason decided to plead not guilty and goes to trial. But also assume that the police obtained the drugs during an illegal search in violation of the defendant's constitutional rights. Then assume that the defendant's lawyer negligently failed to file a motion to suppress the evidence which would have been granted and which would have resulted in the exoneration of the defendant or the dropping of the charges because there was no other evidence. Wasn't the defendant convicted but for the negligence of the lawyer? Didn't the guilty person suffer an actual injury?
Even if guilty, the criminal defendant in this case claim that that the attorney's negligence resulted in actual injury, just as much as the criminal defendant in Cortez could. I think the underlying argument on which both defendants are basing their claims is the same, and that the analysis of the court should be the same. In fact, I think the court reached the correct result in Cortez, but it is wrong in holding that the result does not apply to other cases. It should. There should be no requirement to show actual innocence; period.
Having said all that, it should be noted that in Cortez the court affirmed summary judgment for the lawyer for a different reason. The plaintiff could not establish that but for the lawyer's substandard performance the government would have offered—and the client would have accepted—a deal better than the one he eventually took. In other words, the plaintiff's argument that he would have gotten a better result had it not been for the lawyer's negligence was based on speculation, not on an actual fact. Had the state made a better offer and the attorney had failed to tell the client, then the client would have had a claim; but since no alternative offer was made, the client could not show that the negligent conduct was the cause in fact of the claimed injury.
A new case from New Jersey addressed the issue and found no need to show actual innocence while suggesting the requirement should still apply to most cases. The court tries to make a distinction; but I don't buy it.
In this case, Cortez v. Gindhart, the defendant pleaded guilty to criminal charges but later brought a malpractice claim based on his trial counsel's alleged failure to follow up on the government's suggestion of a possible plea deal. The lower court dismissed the complaint based on precedent cases in the jurisdiction that required the showing of actual innocence. The Appellate Court, however found that those cases did not apply and held that the actual innocence requirement is not a requirement in all cases.
The court found that the issue was different because in the older cases, the plaintiffs (former criminal defendants) had claimed they were wrongfully convicted as a result of their public defenders' negligence while in Cortez the plaintiff had admitted his guilt.
According to the court, the claimed injury in Cortez is different because as a result of the alleged negligence, Cortez was deprived of an opportunity to accept a more favorable plea offer and, as a result of that deprivation, he received a harsher sentence. Based on this, the court then concluded that there is no need for proof of innocence because “negligence in the discharge of duties for a client who pleads guilty may result in actual injury to a client even if guilty.”
I don't find the distinction convincing. What the court is suggesting is that if a person is guilty of the charged crime, and they get convicted, they got what they deserved. But what they deserved was a negligent free representation and if they can show that they would not have been convicted but for the negligence then they did suffer an actual injury even if they were guilty.
Assume for example that a criminal defendant is guilty of possession of an illegal substance. He is guilty because he did, in fact, had the drugs in his possession, but for whatever reason decided to plead not guilty and goes to trial. But also assume that the police obtained the drugs during an illegal search in violation of the defendant's constitutional rights. Then assume that the defendant's lawyer negligently failed to file a motion to suppress the evidence which would have been granted and which would have resulted in the exoneration of the defendant or the dropping of the charges because there was no other evidence. Wasn't the defendant convicted but for the negligence of the lawyer? Didn't the guilty person suffer an actual injury?
Even if guilty, the criminal defendant in this case claim that that the attorney's negligence resulted in actual injury, just as much as the criminal defendant in Cortez could. I think the underlying argument on which both defendants are basing their claims is the same, and that the analysis of the court should be the same. In fact, I think the court reached the correct result in Cortez, but it is wrong in holding that the result does not apply to other cases. It should. There should be no requirement to show actual innocence; period.
Having said all that, it should be noted that in Cortez the court affirmed summary judgment for the lawyer for a different reason. The plaintiff could not establish that but for the lawyer's substandard performance the government would have offered—and the client would have accepted—a deal better than the one he eventually took. In other words, the plaintiff's argument that he would have gotten a better result had it not been for the lawyer's negligence was based on speculation, not on an actual fact. Had the state made a better offer and the attorney had failed to tell the client, then the client would have had a claim; but since no alternative offer was made, the client could not show that the negligent conduct was the cause in fact of the claimed injury.
Tuesday, June 3, 2014
Oregon Supreme Court holds conversations within law firm are privileged in malpractice case against the law firm
Last week, the Oregon Supreme Court became the third state high court to hold that consultations between a law firm's attorneys and the firm's in-house counsel are privileged from discovery in a malpractice action even if they concern the firm's potential liability to a current client. The case is Crimson Trace Corp. v. Davis Wright Tremaine LLP. The issue was most recently addressed in Massachusetts and later in Georgia and has generated an interesting debate. Go here for an article criticizing the Massachusetts and Georgia decisions, and here for a debate on them.
Friday, May 23, 2014
Podcast on lawyer advertising
Here is a podcast discussing issues related to lawyer advertising. There is nothing particularly new here, but it might be interesting to those looking for new material to discuss old issues.
Podcast on jury nullification
I think the discussion of whether it would be ethical for an attorney to encourage the jury to engage in "nullification" is very interesting. Unfortunately, we don't have enough time to go cover it enough in class. For those of you looking for materials to discuss this issue, here is a podcast and discussion I just found in the website The Life of Law.
Sunday, May 18, 2014
Yet another shameful case of prosecutorial misconduct out of New Orleans
There is a new chapter in the shameful history of prosecutorial misconduct in New Orleans. Another prisoner has been released, this time after spending 34 years in prison due to what the current Orleans Parish District Attorney called “shameful” misconduct. What is truly shameful is that this is obviously not an isolated incident. The case is out of the same office that resulted in Connick v. Thompson, Smith v. Cain and more. The New Orleans Times-Picayune has the story here.
New York Times reports on internal investigation of GM legal department
Here is an interesting article in today's New York Times that reports on an on-going internal investigation on the role of GM's lawyers in the recent recalls and investigations that resulted in GM's agreement to pay a $35 million dollar fine.
For more on the GM mess go here and scroll down.
For more on the GM mess go here and scroll down.
Tuesday, May 13, 2014
Minnesota Supreme Court has remanded the order disqualifying Covington & Burling in a case I have been writing about for almost 2 years
Back in August of 2012 I first reported on a complaint filed by 3M Corp. against the law firm Covington & Burling alleging that the firm had dropped 3M like a hot potato in order to represent the state of Minnesota in a case against 3M. Covington argued that it was no longer representing 3M by the time it agreed to represent the state. I posted my comments on that claim here.
Meanwhile, aside from that lawsuit, 3M moved to disqualify Covington in the case in which it was representing the state against 3M. I posted my comments on that here. Although 3M claimed a violation of the hot potato doctrine as the basis for its motion, the court decided it on different grounds. The court agreed with Covington that 3M was a past client, rather than a current one, thus making the hot potato doctrine irrelvant, but agreed with 3M that Covington should be disqualified for violating the rule against conflicts of interest as they relate to former clients (rule 1.9). I commented on the disqualification order here.
Covington and its client then appealed the disqualification order and I wrote my thoughts on their arguments here. I argued that once the court finds that the past representation of 3M and the current representation of the state against 3M are substantially related, Covington's arguments are relatively weak.
In July 2013, the court of appeals affirmed the disqualification order, but Covington then appealed to the Minnesota Supreme Court. For my post on this go here, which has a link to the opinion itself.
Now, almost two years after the affair began, the Minnesota Supreme Court has reversed and remanded the case holding that the lower court did not make enough findings to support its conclusion that the cases were substantially related. This does not mean that Covington will not be disqualified; only that the court needs to make further findings to determine if it is justified to disqualify the firm. However, the opinion suggests some of the factors it things should be considered and, in my opinion - for the reasons I argued in my post on the appeal to the appellate court - those factors will support Covington's position more than 3M's motion.
The Legal Profession blog has a note on the decision here. Thanks to the Legal Ethics Forum, you can download the opinion here.
Meanwhile, aside from that lawsuit, 3M moved to disqualify Covington in the case in which it was representing the state against 3M. I posted my comments on that here. Although 3M claimed a violation of the hot potato doctrine as the basis for its motion, the court decided it on different grounds. The court agreed with Covington that 3M was a past client, rather than a current one, thus making the hot potato doctrine irrelvant, but agreed with 3M that Covington should be disqualified for violating the rule against conflicts of interest as they relate to former clients (rule 1.9). I commented on the disqualification order here.
Covington and its client then appealed the disqualification order and I wrote my thoughts on their arguments here. I argued that once the court finds that the past representation of 3M and the current representation of the state against 3M are substantially related, Covington's arguments are relatively weak.
In July 2013, the court of appeals affirmed the disqualification order, but Covington then appealed to the Minnesota Supreme Court. For my post on this go here, which has a link to the opinion itself.
Now, almost two years after the affair began, the Minnesota Supreme Court has reversed and remanded the case holding that the lower court did not make enough findings to support its conclusion that the cases were substantially related. This does not mean that Covington will not be disqualified; only that the court needs to make further findings to determine if it is justified to disqualify the firm. However, the opinion suggests some of the factors it things should be considered and, in my opinion - for the reasons I argued in my post on the appeal to the appellate court - those factors will support Covington's position more than 3M's motion.
The Legal Profession blog has a note on the decision here. Thanks to the Legal Ethics Forum, you can download the opinion here.
Debate on LegalZoom's business model continues
Back in April I reported that the South Carolina Supreme Court found LegalZoom is not engaged in unauthorized practice of law. However, the debate as to Legal Zoom's business model continues. Some of the members of the Legal Ethics Forum debate the issue here and Professional Liability Matters addresses the issue here.
Indiana Supreme Court decides case that can help define the limits of the state's authority to discipline lawyers for comments about judges
I have been following the debate about whether (or under what circumstances) should the state be allowed to discipline a lawyer for comments about judges or other lawyers. For example, see here, here, and here. Adding to this discussion, the Indiana Supreme Court recently decided a case that may be helpful for defining the limits of the state's authority to discipline for speech about judges or other lawyers.
The case is called Brewington v. State. It involved a non-attorney's conviction for intimidating a judge. The conviction was upheld but the court's discussion develops an interesting analysis based on the distinction between speech that may be a threat to someone's reputation (which is protected) and speech that actually expresses a threat of physical harm (which would not be). For a discussion of the case go here.
The case is called Brewington v. State. It involved a non-attorney's conviction for intimidating a judge. The conviction was upheld but the court's discussion develops an interesting analysis based on the distinction between speech that may be a threat to someone's reputation (which is protected) and speech that actually expresses a threat of physical harm (which would not be). For a discussion of the case go here.
Subscribe to:
Posts (Atom)