Texas lawyers protest suspension of prominent death row inmates' lawyer

I just read a recent story about about the suspension of a prominent capital defense attorneys by Texas’ Court of Criminal Appeals for filing a late petition in a death penalty case.  The author of the article argues that

"the sanction was doubly bonkers . . . because other death penalty lawyers never seem to be sanctioned for sleeping, drinking, or otherwise rendering themselves incompetent at trial. In any event, Dow was barred from appearing before the CCA for 12 months. Which means that his death row clients—whom he represents pro bono, and who may not find other lawyers to do so—literally have their lives on the line because a motion may or may not have been filed a few hours late. Or, as one lawyer quipped after the piece was posted: “Apparently Texas finally found one lawyer to be incompetent: the one who is actually good at his job.”

In response to the sanction, some 300 lawyers have filed a petition in the Texas Supreme Court seeking a declaratory judgment or, in the alternative, a writ of mandamus, overturning Dow's suspension.

Again, quoting from the article I just read,

The gist of the petition has to do with the case Dow was handling on appeal. His supporters say that if the original trial counsel had done the things he was supposed to do at the original trial (like, say, put on mitigating evidence; explain to the jury that his client was mentally ill; call even a single witness at punishment phase), Dow would not have needed to step in at the last minute to try to stay the execution. In our topsy-turvy capital defense universe, Dow is being sanctioned for trying to (quickly and with an execution date looming) do what defense counsel should have done in the first place.

I really don't know anything about this case or its background, so will let you read the full story and make up your own mind.  You can find the story here.

This is not the only story about a state going after successful capital punishment defense lawyers.  The Legal Profession blog has a similar recent story from North Carolina here.

Lawyer suspended for being drunk at a CLE program

The Legal Profession blog is reporting that a Virginia lawyer has been been suspended for six months and ordered to enroll in a two-year treatment and monitoring program for being intoxicated and disruptive at a Continuing Legal Education program last year. You can read more details on the story here.
 
I have seen cases of discipline for not complying with CLE requirements but I don't remember another case involving conduct during a CLE program.
 
Prof. Jonathan Turley has a comment on the case here.

Can lawyers lie during negotiations?

Can a lawyer lie during negotiations? 

The Comment to Model Rule 4.1 (Truthfulness in statements to others) states that the duty not to make false statements of material facts refers only to "statements of fact" and that under "generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact."  But what does that really mean?

To help us understand, Professor Ron Rotunda has published a short review of the issues here.

Supreme Court denies cert petition in Truvia v. Connick

Last month I wrote about the cert petition in Truvia v. Connick, the most recent in a series of cases from New Orleans on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages.  You can read my original post here.

I was hoping the Court would grant the petition and revise its view on the issue, but it was not to be.  I found out today that the Court denied the petition a week ago.  Here is a page where you can find links to the documents in the case.

Thanks to Prof. Joan (Shaun) Shaughnessy (Washington & Lee) for the update.

Another opinion on the duty to disclose client's death

Last month I posted a comment on a recent Illinois case on whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation.

About ten days ago, the Legal Profession blog reported on another opinion on the same subject.  In this one, an attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year.  The case is called Matter of Rosner and it is available here.

Better Call Saul

Anyone who knows me knows I like to watch legal themed movies and TV shows (and read novels too).  I have written reviews of some of those shows and movies here on the blog, and I often make references to, and show clips of, movies in class. 

The most recent TV show I have been watching is Better Call Saul which is a prequel to the very popular series Breaking Bad, focusing on lawyer Saul Goodman from that series (although one of the first things we learn in the new show is that Saul Goodman is not his original name).

I like the show, and I really like the blog The Legal Ethics of Better Call Saul by Nicole Hyland.  In the blog, Nicole discusses the ethical issues of each episode of the show in great detail. If you have been watching the show, you really ought to check out the blog.

Florida Bar considers three hot topics: multijurisdictional practice, a national bar exam and legal services by non lawyers

Talk about timing!  Tomorrow morning I am leaving town to go speak at a conference in Puerto Rico on the future of the regulation of the profession.  For my talk I used the title "Current Debates on the Regulation of the Profession" and in it I outline a few topics I think are the current (or next) "big things" in the field of professional responsibility.  In my opinion, these are: the possibility of allowing non lawyers to provide some legal services, the possibility of allowing lawyers to form partnerships with non lawyers or to get non lawyer investors, the possibility of a national bar exam and issues related to multijurisdictional practice.

So, while I was reading my notes one more time just a few minutes ago, the Puerto Rico Supreme Court issued an opinion on admission by motion (that underscores the debate on mutijurisdictional practice in the island) and the Florida Bar Association posted a podcast discussing these exact same issues!  The podcast appears below and you can listen to it by pressing on the play button, or by going here.   More proof that these topics are pretty "current", I guess.

On the need to make prosecutors accountable for their misconduct

Long time readers of this blog know how much I have argued over time that courts do not do enough to discourage misconduct on the part of prosecutors.  I am, of course, not alone in expressing this sentiment.  Here is a very good recent post in the "a public defender" blog on the subject.

California Bar issues opinion on whether attorney can refuse to disclose confidential information in support of motion to withdraw from representation

The California bar's ethics committee recently issued an opinion (Formal Op. 2015-192) attempting to clarify whether an attorney seeking to withdraw from a litigation for ethical reasons might have grounds for resisting a court order that would require the lawyer to disclose client confidences to a judge who wants more information before ruling on the motion.  Although it admits there is no on-point guidance in California, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive.  You can read the opinion here.  The summary reads as follows:

An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney - client relationship. In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera. To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders. Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed. Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client.

Podcast on lawyers and modern technology

The Legal Talk Network has a new podcast on lawyers and modern technology. You can listen to it by clicking on the play button below. If you can't see the button, you can go here.

Here is the description of the program:

As we’ve heard time and time again, many lawyers are averse to becoming knowledgeable about modern technology. Older attorneys often do not want to learn a computer-based management tool and feel as though they can hire someone to manage the security and encryption of their sensitive information. Often, even having a young lawyer in the firm can seem like a solution since they will most likely have grown up with a certain level of technology knowledge. But none of these are valid excuses to a proper level of technological education. The luddite lawyers need to face the ethical implications of their ignorance.

In this episode of The Digital Edge, Sharon Nelson and Jim Calloway interview lawyer and legal technology blogger Sam Glover about when technology became an issue for attorneys, how they can get in trouble due to ignorance, and what all attorneys need to know about hackers, cloud services, and the resulting ethical duties. First, Glover explains that lawyers are getting into trouble in the courtroom by not knowing about how technologies like Twitter work... Concerning cyber security, Glover discusses the many reasons lawyers cannot simply outsource technology knowledge. ... Simply put, you cannot avoid technology as a lawyer anymore. There are courses, blogs, webinars, books, and many other ways to become educated about legal technology.