Second Circuit finds prosecutors do not have absolute immunity from suits for misconduct while presenting a case to a grand jury

Last year I reported that a split panel of the Court of Appeals for the Seventh Circuit held in a case called Fields v Wharrie, that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case (as opposed to the trial phase of the case).

Above the Law is now reporting on a recent decision from the Court of Appeals for the Second Circuit holding that because the jury found that the prosecutor presented false evidence to the grand jury that he either knew was false — or was reckless in figuring out the truth of — he had no qualified immunity. Even though a prosecutor can decide to exclude material evidence and can affirmatively ignore exculpatory evidence in a grand jury presentation, the Second Circuit didn’t have trouble finding that the law is pretty clearly settled that a prosecutor can’t actually provide false evidence.

What is interesting in this case is that the court finds that presenting the case to the grand jury falls within the "investigation" phase of the case.  The case is called Morse v. Fusto and you can read it here.

Prosecutorial misconduct in California: an entire DA's office disqualified; and now a statute to encourage more accountability for misconduct

Long time readers of this blog know that I have often commented on the fact that courts do not seem to take prosecutorial misconduct too seriously, and do not do enough to discourage it.  (Click on the label "prosecutors" on the right hand side panel and scroll down for many posts on the subject).

That may change in California, where prosecutors who deliberately withhold evidence from defense attorneys may face harsher punishment under a new law recently signed into law by Gov. Jerry Brown.  Go here for more on the story.

The statute bolsters a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office. The law also requires the court to report violations to the state bar, which licenses attorneys.
"The bill seems like a step in the right direction," Alex Kozinski, former chief judge of the Ninth Circuit Court of Appeals, told The Huffington Post. "It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority."

But that's the key.  The law itself will be ineffective unless judges are willing to exercise their authority.  In fact, I don't think the law changes much, since it does not give judges any more authority than they already had.  Yet, if all it does is encourage more judges to take action, then the law is, in fact, a step forward.

The law seems to be a reaction to an incident back in March when a state judge removed a full DA's office from the county’s highest-profile murder prosecution in years because misconduct had tainted the entire office’s handling of the case. He reassigned the case to the California attorney general, Kamala Harris, a ruling her office is appealing.  Go here for a New York Times article with more information on that story.

Interesting new study on professionalism

Ethical Systems.org is reporting on a new paper on Professionalism and Moral Behavior which tests the hypothesis that individuals in traditional occupations that strongly identify as professionals (e.g., law, medicine) have a greater likelihood of engaging in unethical behavior. This is an important inquiry in light of ethical failures in companies where lawyers and accountants often act as “gatekeepers” on ethics and compliance issues vis a vis corporate practices.  Examples of incidents in these types of companies abound, with automakers and financial companies featuring prominently on the list.  Go here for more information and links.

On a related matter, here is a comment on the ethical culture that allows conduct as the one recently discovered Volkswagen perpetrated to deceive consumers and authorities.

Chicago State's Attorney refuses to re-open cases found likely to have resulted in wrongful convictions

Chicago's Cook County State's Attorney Anita Alvarez is again under fire.  I say "again" because it is not the first time she has drawn national attention regarding the topic of wrongful convictions.  Go here for a 60 minutes segment on the subject.  Now, Alvarez is facing more criticism for refusing to re-open four cases that were identified in an independent investigation as “more likely than not” resulting in the conviction of innocent men. The investigation had been commissioned by mayor Rahm Emanuel and conducted by former U.S. attorney Scott Lassar.

One interesting aspect of this story is that in many other jurisdictions, Alvarez's conduct could be argued to be a violation of the rules of professional conduct.  Model Rule 3.8 includes the following two sections:

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Of course, if these sections applied, the question would be whether the investigation constitutes "new evidence." Alvarez has argued it does not.

But the question in Illinois is different because these sections were not adopted in Illinois when the state adopted the Model Rules in 2010.  In the end, right now it appears the decision does not depend on anything other than Alvarez's discretion.

Slate has the story here.

On teaching how to represent a client with diminished capacity

The blog IP Ethics & Insights has a monthly feature on "what they don't teach you in law school" which is actually making me feel pretty good about my own teaching because the last two topics it has covered (here and here) are things I actually do teach in my class.  The first one was how to handle client's money, which I will be covering in class today, as a matter of fact.

The second one is how to represent a client with diminished capacity, which I cover as part of the discussion on the basic principles of an attorney-client relationship.  IP Ethics & Insights covers the basics here.  To discuss this material I assign a case called In the Matter of MR, 638 A.2d 1274 (N.J. 1994), which provides a good discussion of the basic principles and a helpful analysis on how to evaluate the proper role of the lawyer and the allocation of the decision making authority within the attorney client relationship. 

If you want more information about what I cover in my class (and how I do it), feel free to visit my course website here.

Florida adopts amendments to clarify issues related to different types of fees

About three weeks ago, the Florida Supreme Court adopted some changes to the state's rules to provide better definitions of some concepts related to fees.  See In re Amendments to Rule Regulating the Fla. Bar 4-1.5—Fees & Costs for Legal Servs., 2015 BL 300826, Fla., No. SC14-2112, 9/17/15.

According to the new text in Rule of Professional Conduct 4-1.5, a “retainer” is a sum paid to guarantee a lawyer's future availability, not payment for past or future legal services, while a “flat fee” is money paid for all legal services to be provided and may be termed “non-refundable.” An “advance fee” is a payment against which the lawyer will bill the client as legal services are provided.  Note that what Florida calls "advance fees" is what most other jurisdictions know as a "security retainer."

In addition to the new text of the rule, Florida amended the rule's comment to make clear that a nonrefundable retainer or nonrefundable flat fee should not be held in trust and that advance fees must be held in trust until earned.  The comment also says that nonrefundable fees, like all fees, are subject to the prohibition against excessive fees.

I find it interesting that the Court decided to allow non refundable flat fees.  Whether flat fees can be non refundable has been the subject of different (and often confusing) approaches by many courts.  See my previous comments on the subject here, here and here.

My own view on this topic is that it is not unreasonable to collect a non refundable flat fee if the task is completed in less time than originally expected.  In such a case, the attorney should be allowed to keep the value of the time saved.  If the task is not completed, however, as when a client dismisses the attorney before the task is completed, the attorney should refund the portion of the fee that is "unearned." 

If that is what Florida has in mind in its new rules, I am OK with it.  

NY opinion on what to do when client files are accidentally destroyed by fire or natural disaster

When a hurricane, fire, or other disaster destroys client files, attorneys face the difficult question of how to communicate the loss to clients. Until recently, most ethics guidance on this topic focused on what lawyers can do ahead of time to reduce the risk of loss. Now, a new ethics opinion by the New York City Bar Association's Committee on Professional Ethics offers guidance on what lawyers should do after client files are inadvertently destroyed. Here's a helpful summary.

Reforms Proposed For New York Bar Disciplinary System

A comprehensive series of reform proposals have been set forth in a recent report evaluating the New York State bar disciplinary system by the Commission on Statewide Attorney Discipline, including. among many others the creation of a more easily accessible, searchable, consumer-friendly, statewide website geared toward the legal consumer.

Also, I am happy to see the report pays particular attention to the need to take prosecutorial misconduct more seriously, a problem I have written about here repeatedly.

The Legal Profession blog has more information here.

Quick review of the basics of handling money

IPethics&Insights has a short post reviewing the basics on handling clients' money, firm bank accounts and the like, here.

Follow up on the story on judge's questioning of prosecutor's exercise of discretion not to charge

Less than a week ago, I wrote about a case in Colorado where a judge ordered a prosecutor to appear for a hearing to explain why the prosecutors' office did not file charges against a sheriff's deputy.  Go here for the details.  Today, the ABAJournal.com is reporting that the judge found the prosecutor should have filed charges (which I assume means the judge found the prosecutor abused his discretion in not doing so).  However, the judge also found that it was too late to do it now because the statute of limitations had run.

Should the judge have imposed sanctions for the abuse of discretion?  I don't think so.  It seems to me the prosecutor did not file charges because he did not want to charge a sheriff's deputy.  His explanation as to why he decided not to file is simply unbelievable given the evidence available in the videos showing the incident.  Yet, for good or for bad, prosecutorial discretion is a necessary component of our criminal justice system.  This is one of those cases where doing what the judge did is about as good as it can get at creating an incentive for prosecutors to do the right thing.