I have written before about the debate on whether the state should provide attorneys to litigants who can't afford them in civil litigation. (Go here for a note describing Illinois' approach to the issue, and here for a link to a comment on the subject.)
Recently, the issue was back in the news again because The New York Times published this article.
Tuesday, November 25, 2014
Failure to communicate plea bargain offer can constitute ineffective assistance of counsel
The South Carolina Court of Appeals has found ineffective assistance of counsel in a case where the defendant was not advised of a ten-year plea offer before going to trial and getting twenty. The case is called Chico Bell v. The State of South Carolina and you can read the opinion here.
Did the prosecutor in charge of the grand jury in Ferguson act unethically?
As we watch the events in Ferguson, Missouri unfold, here is a short comment by Prof. Monroe Freedman arguing the prosecutor in charge of the grand jury acted with a conflict of interest.
In an unrelated comment, another author argues the case should have been set for trial saying..
In an unrelated comment, another author argues the case should have been set for trial saying..
Ferguson prosecutor Robert McCulloch delivered a long-winded, smirking speech blaming social media, journalists, Ferguson residents, and pretty much everyone else who isn't Darren Wilson, for Darren Wilson shooting and killing 18-year-old Michael Brown. It took McCulloch 10 minutes of hectoring before he revealed the grand jury had found no probable cause to indict Wilson, and the rest of the 45-minute speech, in which McCulloch seemed to be presenting evidence in Wilson's favor, felt more like defense attorney's argument than a prosecutor's. The very length of McCulloch's rambling statement, really, and the amount of evidence he felt compelled to argue against, was in and of itself a fair argument that the case should have gone to trial.
Wednesday, November 12, 2014
New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors' office backs them up
The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No. 469). You can read the full opinion here. The summary speaks for itself:
A prosecutor who provides official letterhead of the prosecutor’s office to a debt collection company for use by that company to create a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatens prosecution, when no lawyer from the prosecutor’s office reviews the case file to determine whether a crime has been committed and prosecution is warranted or reviews the letter to ensure it complies with the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a).
Monday, November 10, 2014
South Carolina Supreme Court recognizes the right of a beneficiary of a will or trust to sue a lawyer for malpractice
About ten days ago, in a case called Fabian v. Lindsay, the South Carolina Supreme Court recognized a cause of action, in both tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client's intent. The Court added that "[r]ecovery under either cause of action is limited to persons who are named in the estate planning document or otherwise identified in the instrument by their status. Where the claim sounds in both tort and contract, the plaintiff may elect a recovery." You can read the opinion here.
Friday, October 31, 2014
More comments on California's rejection of a proposal to adopt the Model Rules
As I reported recently (here), the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct. As you would expect, the decision has generated much commentary (see here, here and here). Adding to the discussion, over at the Legal Ethics Forum now you can find a very good discussion of the issues.
Thursday, October 30, 2014
Podcast on ethical issues about social media
Here is another podcast on ethical issues related to social media. If you can't see the play button below, you can listen to the program here.
Monday, October 27, 2014
ND State Bar opinion finds use of medicinal marijuana is a violation of the rules of conduct even if the use is legal according to state law
Legal Ethics in Motion is reporting on an interesting Advisory Opinion issued a couple of months ago by the Ethics Committee of the State Bar Association of North Dakota that concludes that a lawyer licensed in North Dakota who uses medical marijuana in a state that authorizes its use, violates North Dakota Rule of Professional Conduct Rule 8.4(b). You can read the short opinion here. (Opinion 14-02, issued August 12, 2014)
I don't agree with the opinion. Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]” Why does this rule apply if the lawyer is participating in a legal activity? And even if it is illegal, how does using marijuana for medicinal purposes reflect adversely on a person's honesty or fitness? It is one thing to say that a lawyer is unfit because he or she is suffering from a the medical issue that is so debilitating it prevents the lawyer from meeting his or her duties, but that is not what the opinion says.
The basis for the conclusion is that the use of medicinal marijuana has not been legalized by federal law. Based on this reasoning, a lawyer (indeed, anyone at all) who uses medicinal marijuana even in a state where it is legal to do so, could be found to be in violation of federal law. And, due to that possibility, a lawyer should not engage is conduct that is potentially a violation of federal law.
I understand the logic, but I am still not convinced, particularly since I am not convinced that the "crime" is the type of crime, by itself, that reflects adversely on honesty or fitness. According to the Committee's logic all crimes reflect adversely which makes the language of the rule superfluous.
I don't agree with the opinion. Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]” Why does this rule apply if the lawyer is participating in a legal activity? And even if it is illegal, how does using marijuana for medicinal purposes reflect adversely on a person's honesty or fitness? It is one thing to say that a lawyer is unfit because he or she is suffering from a the medical issue that is so debilitating it prevents the lawyer from meeting his or her duties, but that is not what the opinion says.
The basis for the conclusion is that the use of medicinal marijuana has not been legalized by federal law. Based on this reasoning, a lawyer (indeed, anyone at all) who uses medicinal marijuana even in a state where it is legal to do so, could be found to be in violation of federal law. And, due to that possibility, a lawyer should not engage is conduct that is potentially a violation of federal law.
I understand the logic, but I am still not convinced, particularly since I am not convinced that the "crime" is the type of crime, by itself, that reflects adversely on honesty or fitness. According to the Committee's logic all crimes reflect adversely which makes the language of the rule superfluous.
Wednesday, October 22, 2014
Comments on possible non lawyer ownership of law firms
Whether law firm ownership should be limited to lawyers is one of the most important debates going on in the American legal profession today. Below you will find a short comment posted in the The Legal Talk Network on the subject, which is described as follows:
Legal Talk Network producer Laurence Colletti interviews consultant George Beaton about how client buying behavior was affected by the deregulation of ownership of law firms in Australia. Beaton discusses conflicts of interest, access to justice, client satisfaction, and the range of services under an outside ownership model for a law firm. Additionally, he talks about professionalism in the legal field and the role of an oversight model such as a Bar Association. Dr. George Beaton is a partner in Beaton Capital, an associate professor at the University of Melbourne, and authored NewLaw New Rules, a ground-breaking narrative on the changes sweeping the legal services industry.
If you can't see the "play button" below, you can listen to the program here.
Legal Talk Network producer Laurence Colletti interviews consultant George Beaton about how client buying behavior was affected by the deregulation of ownership of law firms in Australia. Beaton discusses conflicts of interest, access to justice, client satisfaction, and the range of services under an outside ownership model for a law firm. Additionally, he talks about professionalism in the legal field and the role of an oversight model such as a Bar Association. Dr. George Beaton is a partner in Beaton Capital, an associate professor at the University of Melbourne, and authored NewLaw New Rules, a ground-breaking narrative on the changes sweeping the legal services industry.
If you can't see the "play button" below, you can listen to the program here.
Monday, October 20, 2014
Puerto Rico Supreme Court invalidates statute that made Bar Association membership mandatory
Last week the Puerto Rico Supreme Court issued an opinion resolving a debate that had been hanging over the legal profession in the island for decades: whether it is constitutional for the state to mandate that attorneys join the Puerto Rico Bar Association. The case is called Rivera Schatz v. Estado Libre Asociado, and you can read the opinion (in Spanish) here.
The background story is long, but I will summarize it as best as I can. In 1932, the Puerto Rico legislature enacted a statute creating the Puerto Rico Bar Association (known in Spanish as the Colegio de Abogados) and making membership mandatory for all attorneys. Failing to pay the Bar Association's dues was, thus, a sanctionable offense. That statute was challenged at some point in the 1980s by about 100 attorneys who refused to pay the membership dues arguing that the "integrated bar" requirement was an unconstitutional infringement on the attorneys' rights to freedom of speech and association.
As a result of that long litigation in the 1980s (Schneider v. Colegio de Abogados) a system was adopted for Bar Association members to specifically designate what their fees could be used for. Once this was in place, the Bar Association could claim the members were not in a position to claim their constitutional rights to free speech and association were violated.
The saga did not end there, of course. The next chapter began in 2009 when the legislature amended the 1932 statute to eliminate mandatory bar membership as a requirement to practice law.
Arguing that the legislature had infringed on the Supreme Court's "inherent power" to regulate the profession, the Bar Association sued to challenge the new law. This challenge was decided in 2011 when the Court denied the Bar Association's cert petition with an order holding that the legislature's decision to eliminate mandatory bar membership did not infringe on the Court's inherent power to regulate the profession and was not in violation of the principle of separation of powers.
Three years later, the legislature (now controlled by a different political party) enacted yet another law restoring mandatory Bar Association membership, and, as you would expect, that law was then challenged by opponents of an integrated bar. It is this challenge that the court decided last week.
Given its decision against the Bar Association in 2011, it is not surprising that the Court again decided against a mandatory integrated bar. What is surprising, though, is that it does so by adopting the position it rejected back then. In the new opinion, the Court concludes that the adoption of a statute constituted an infringement on its "inherent power" to regulate the profession and a violation of separation of powers.
Of course, the question of the constitutionality of an integrated bar is not unique to Puerto Rico. In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.
This last point is important for the Puerto Rico situation because the underlying fight has always been about the Bar Association's use of its funds to support causes some of the members find objectionable.
For much of its history, the Puerto Rico Bar Association has been thought of as a "liberal" organization which has supported causes like women's rights, environmental protection, access to legal services and which has expressed opposition to the United States use of parts of the island for military operations, and so on. Lawyers who have opposed the integrated bar concept have long objected to the Bar Association's involvement in what they consider to be political questions, arguing it uses dues money to advance positions the members do not necessarily agree with.
Interestingly, how to deal with the opposition to the use of the funds was one of the questions that the Schneider case in the 1980s actually decided.
But the story ends, for now at least, last week when the Supreme Court should be free to choose whether to join the Bar Association.
I wonder if the Bar Association will take the chance to go to the US Supreme Court and ask it to consider what it left undecided in Lathrop.
Stay tuned....
The background story is long, but I will summarize it as best as I can. In 1932, the Puerto Rico legislature enacted a statute creating the Puerto Rico Bar Association (known in Spanish as the Colegio de Abogados) and making membership mandatory for all attorneys. Failing to pay the Bar Association's dues was, thus, a sanctionable offense. That statute was challenged at some point in the 1980s by about 100 attorneys who refused to pay the membership dues arguing that the "integrated bar" requirement was an unconstitutional infringement on the attorneys' rights to freedom of speech and association.
As a result of that long litigation in the 1980s (Schneider v. Colegio de Abogados) a system was adopted for Bar Association members to specifically designate what their fees could be used for. Once this was in place, the Bar Association could claim the members were not in a position to claim their constitutional rights to free speech and association were violated.
The saga did not end there, of course. The next chapter began in 2009 when the legislature amended the 1932 statute to eliminate mandatory bar membership as a requirement to practice law.
Arguing that the legislature had infringed on the Supreme Court's "inherent power" to regulate the profession, the Bar Association sued to challenge the new law. This challenge was decided in 2011 when the Court denied the Bar Association's cert petition with an order holding that the legislature's decision to eliminate mandatory bar membership did not infringe on the Court's inherent power to regulate the profession and was not in violation of the principle of separation of powers.
Three years later, the legislature (now controlled by a different political party) enacted yet another law restoring mandatory Bar Association membership, and, as you would expect, that law was then challenged by opponents of an integrated bar. It is this challenge that the court decided last week.
Given its decision against the Bar Association in 2011, it is not surprising that the Court again decided against a mandatory integrated bar. What is surprising, though, is that it does so by adopting the position it rejected back then. In the new opinion, the Court concludes that the adoption of a statute constituted an infringement on its "inherent power" to regulate the profession and a violation of separation of powers.
Of course, the question of the constitutionality of an integrated bar is not unique to Puerto Rico. In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.
This last point is important for the Puerto Rico situation because the underlying fight has always been about the Bar Association's use of its funds to support causes some of the members find objectionable.
For much of its history, the Puerto Rico Bar Association has been thought of as a "liberal" organization which has supported causes like women's rights, environmental protection, access to legal services and which has expressed opposition to the United States use of parts of the island for military operations, and so on. Lawyers who have opposed the integrated bar concept have long objected to the Bar Association's involvement in what they consider to be political questions, arguing it uses dues money to advance positions the members do not necessarily agree with.
Interestingly, how to deal with the opposition to the use of the funds was one of the questions that the Schneider case in the 1980s actually decided.
But the story ends, for now at least, last week when the Supreme Court should be free to choose whether to join the Bar Association.
I wonder if the Bar Association will take the chance to go to the US Supreme Court and ask it to consider what it left undecided in Lathrop.
Stay tuned....
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