New statute in New York creates a commission to review prosecutorial misconduct

Long time readers of this blog know that I have posted a lot of stories about prosecutorial misconduct over the years (go here and scroll down).  And in many of those stories, I have often complained that courts do not do enough to confront the problem.

Today, for a change, I am reporting that one state is at least trying.  As reported in Jurist:

New York Governor Andrew Cuomo signed a bill Wednesday to create a commission to review prosecutorial misconduct by District Attorneys.  This is the second version of the bill that the governor has signed. The first version of the bill was challenged by a coalition of district attorneys under separation of powers concerns between the judiciary and legislature, but was halted among promises to revise the bill. The governor and state legislature made changes regarding the 11 appointments to the commission. The original version allowed the legislature to appoint all members of the Commission, and the bill signed on Wednesday allows for appointments from the governor, legislative party members, and Chief Judge Janet DiFiore. The commission will review potential misconduct of state prosecutors and impose necessary sanctions. The panel can subpoena witnesses and ask for relevant records to conduct its investigation. Upon a finding of misconduct, prosecutors can be sanctioned ranging from public censure to being removed by the governor. Prosecutors will also be able to challenge the panel’s decisions on an appeal to the Appellate Division of the NY’s Supreme Court.  The new version of the bill is still expected to face due process and equal protection challenges for expanding the power and authority of the state judiciary.

You can read the text of the bill here.

Devin Nunes files lawsuit for $250 million against Twitter; does it violate the rules against frivolous suits?

By now, I am sure you have heard all the jokes about the lawsuit filed by Rep. Devin Nunes.  If not, here is the bottom line: Rep. Devin Nunes has sued Twitter, some satire Twitter accounts, and a real political commentator for a variety of "offenses" including defamation based on allegations that anyone with a basic understanding of the law should know would not support a claim for defamation.  He is asking for $250 million in compensation.  The defamation claim is frivolous.

Of course, frivolous lawsuits are not new, but this is the same Devin Nunes who co-sponsored the Discouraging Frivolous Lawsuits Act and who once voted for a House Amendment "to express a sense of Congress that free speech should be protected."

But, my question for the readers of this blog is this:  if the claims are so obviously frivolous, what was the lawyer who filed the complaint thinking?  Are the rules (both in civil procedure and professional responsibility codes) not enough to discourage filing of frivolous complaints?

For a detailed analysis of the complaint, go to TechDirt.

You can read more comments in ABA Journal, and The Daily Beast.

For the jokes I mentioned above, you can go here, and here for some examples.

Indiana Supreme Court Disciplinary Commission: "Indiana AG's party behavior violated 'heightened duty of ethical conduct'... "

The ABA Journal is reporting that an ethics complaint filed by the Indiana Supreme Court Disciplinary Commission accuses Indiana Attorney General Curtis Hill of inappropriately touching an Indiana lawmaker and three legislative staff members at a bar party, where he also made “rude and sexually suggestive comments.”  More interestingly, according to the complaint the AG “holds a position of extreme public trust,” and as a government lawyer he has “a heightened duty of ethical conduct.”

The allegations are alarming and I have no problem finding the conduct, if true, is totally unacceptable.

Yet, I do have a problem with the notion that certain lawyers have a "heightened" duty of ethical conduct.  Where does that come from?  Which lawyers are those?  Can someone point me to the rule or legal precedent which creates different levels of duties when it comes to ethical behavior?  I'd like to take a look at them to see if that classification can be justified.

Murder conviction reversed because of failure to object to prosecutors obviously wrong statements to jury as to the meaning of "beyond a reasonable doubt"

The Georgia Supreme Court has vacated and remanded the murder conviction of two parents accused of the crime based on evidence that their healthy newborn returned to the hospital within hours with fatal injuries.

The defendants appealed arguing ineffective assistance of counsel and the court found that the record did not provide sufficient evident for the court to apply the needed analysis to decide that claim.

More interestingly, the court discussed mistakes by both defense counsel and the prosecutor.  The prosecutor made improper and obviously wrong comments during closing argument about the meaning of "reasonable doubt" but defense counsel did not object.  The prosecutor's statement was as follows:

The Judge will charge you on reasonable doubt. Just keep in mind, and he will charge you, reasonable doubt does not mean beyond all doubt. It does not mean to a mathematical certainty. Which means we don’t have to prove that ninety percent. You don’t have to be ninety percent sure. You don’t have to be eighty percent sure. You don’t have to be fifty-one percent sure. It does not mean to a mathematical certainty.  And it does not mean beyond a shadow of a doubt. That’s just something the TV made up. It’s actually beyond a reasonable doubt. And that would be a doubt to which you can attach a reason. And I submit to you there is no reasonable doubt in this case.

Correctly, the court found both that the prosecutor's statement was wrong, and that there was no reason why a competent defense lawyer would not have objected.  Thus, the conviction could not be trusted:

 We also note our serious concern regarding the State’s closing argument during trial that flatly stated that proof beyond a reasonable doubt in this murder case does not require the jury to be even 51% sure— in other words, requires less than even the preponderance of the evidence required to meet the burden of proof in a civil case. That is obviously wrong. A case like this one, where there was no direct evidence to prove that Albert, Ashley, both of them, or neither of them killed McKenzy, could turn on reasonable doubt, and the verdict could be affected by an argument that 50-50 proof is good enough. And the trial court’s jury instruction on reasonable doubt — which in many cases may cure previous misstatements on the subject — did not cure the State’s obviously wrong argument here. The State’s point was to define reasonable doubt as not requiring the State to prove its case to “a mathematical certainty” – a phrase the State repeated twice. Of course, that is a phrase that occurs in the pattern instruction as well, and so when the trial court gave that instruction, it may well have been understood by the jury not as correcting the State’s error, but as reinforcing it. We cannot conceive of any good reason that a competent criminal defense attorney could have to fail to object to such an egregious misstatement of the law.

The Legal Profession blog has the story here.  You can read the opinion here.

New Jersey Supreme Court rejects mandatory malpractice insurance, embraces disclosure of coverage

George Conk, of Professional Responsibility: A Contemporary Approach, is reporting that the New Jersey Supreme Court has issued a "Notice to the Bar" adopting only some of the  recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance.  Among its conclusions, it rejects the notion that all private practitioners should be obligated to have malpractice insurance. However, the court decided to retain a rule that all limited liability firms must carry insurance. Also, the Court announced that it will revisit at an unspecified date whether attorneys who lack coverage should be required to disclose that fact.

Puerto Rico considers implementing IOLTA type rules; comments requested

As you probably know, IOLTA (short for "interest on lawyer trust accounts") programs are a mechanism for funding legal services for the poor. They require attorneys to place certain funds in interest generating accounts and banks to provide the interest to an agency that uses it to provide funds for legal services. All states and the District of Columbia have IOLTA programs. (About a decade ago, the program in DC became mandatory; see here).

Now comes news that the Supreme Court of Puerto Rico is considering adopting a similar program.  The text of it (in Spanish) is available here.  Comments should be sent to SecretariadoConferenciaJudicialyNotarial@ramajudicial.pr

If you want to learn more about the basics of IOLTA programs, you can listen to this short podcast.  Also, here is a short post on common mistakes lawyers make when handling an IOLTA account. If you want to read about the typical debate as to whether IOLTA programs are unconstitutional, you can take a look at this article, although that is only one of many, many others on the subject.

Texas lawsuit challenges mandatory membership in State Bar Association

Three Texas lawyers have filed a federal lawsuit claiming that mandatory membership in the State Bar of Texas violates their First Amendment right against coerced speech because the State Bar Association is using members’ mandatory dues, among other things, to fund programs that help undocumented immigrants seeking asylum, diversity initiatives and programs related to access to legal representation.  The case is called McDonald v. Longley and you can read the complaint here.

The question of the constitutionality of an integrated bar is not new.  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.

Also, I discussed in some detail the back and forth history of the issue in Puerto Rico here.

The Texas Bar allows its members to opt out of supporting causes they do not believe in, but the plaintiffs in the lawsuit allege this system is inadequate.  At the very least, they argue, the system should be one in which the members would be required to "opt in" to avoid forcing them to fall into the default position of supporting causes they may or may not agree with.

Courthouse News and The ABA Journal have stories on the Texas lawsuit here and here.  According to the ABA Journal's story, the Texas lawsuit is among at least four current lawsuits that challenge mandatory state bar dues.

District court grants (partially) motion to dismiss in case against prosecutors for using fake subpoenas and threats to trick witnesses and victims into cooperating with investigations

Long time readers of this blog know that I have reported on a number of cases documenting the misconduct of prosecutors in New Orleans.  (See here.)

Earlier this month, I heard about a new similar case making its way through the courts.  In this case, the plaintiffs allege that the Orleans Parish DA's office for years have been using fake subpoenas to coerce cooperation from witnesses and victims of crimes.  According to the allegations, prosecutors sent out bogus subpoenas -- bearing threats of fines and imprisonment -- to hundreds of witnesses, even though the subpoenas had not been approved by courts overseeing the ongoing prosecutions. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.

Several lawsuits followed, and the District Court of the Eastern District of Louisiana recently decided a motion to dismiss in one of them.  It held that the prosecutors had immunity for some of the alleged conduct, but not for all.  In fact, the court held that the individual defendants are not entitled to absolute immunity for their alleged role in creating or delivering “subpoenas” to victims and witnesses of crimes.

Typically, prosecutors have absolute immunity for their work as litigators, but only qualified immunity for their work as members of the law enforcement team, or as investigators.  It is often not easy to determine when one role ends and the other begins, which is why, as you would expect, there is quite a bit of case law on the subject.  But, in this case, it looks like the court thought that creating and delivering the fake subpoenas was part of the pre-litigation state of the building a case.

Evidently, the plaintiffs will still have to deal with the defense of qualified immunity, but it will be interesting to see how the case develops from now on.

You can read the court's opinion here.   Tech Dirt has a comment on the case here.

Lawyer gets sanctions for conduct as a landlord

I recently posted a few stories (here) that raise the same question:  under what circumstances is the state justified in imposing sanctions for conduct not related to the practice of law.

As I said in one of my recent posts, there is a case in Illinois that suggests the answer depends on whether the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.

Using this analysis, it can be argued, for example, that a lawyer who who steals money should not be trusted to handle other people's money or affairs.

Now comes the story of a lawyer who put glue in his tenant’s locks and let the air out of her tires.  The lawyer's defense:  he was acting as a landlord, not as a lawyer.

So, is this conduct that should subject the lawyer to sanctions?  Under what rule?

If the conduct is "criminal", maybe the state can base the decision on rule 8.4(b) which considers misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.  Is that a strong argument?

There are very few details about the decision of the Board, but from what I read it is not based on a specific rule.  Instead, the story cites the board as concluding that the conduct "exposed the legal profession to obloquy, contempt, censure and reproach” and that the conduct was “contrary to justice, ethics, honesty or good morals.”

This is an awful standard.  First, it is not based on any specific rule; second, it is based on the notion of either an "appearance of impropriety" or an effect on "the image of the profession" or both; and, third, it suggests that lawyers are bound by a duty to abide by "good morals."

I have never liked the use of a standard based on an appearance of impropriety or the image of the profession, which is such a vague and subjective standard.

In terms of the appearance of impropriety, there are essentially three approaches:  some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own.

The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to another standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. 

The notion of "good morals" is also problematic for many reasons.  First of all, who decides what is to be considered "good morals" and what is the basis for that decision?  This is the same problem when we deal with a standard based on the "dignity of the profession."  Who decides what is "dignified"?   This notion was rejected in an old case in Illinois that holds that "we do not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life."

Finally, if the question of the basis for possible discipline was not hard enough, then we get into the next problem:  what is the appropriate sanction for conduct outside the practice of law? (I wrote about this recently here.)

According to the story, the Michigan Attorney Discipline Board found misconduct but has not yet determined the appropriate discipline.

You always risk disbarment

I always tell my students that because there are no penalties associated with specific rules of conduct, "you always risk disbarment."  It is true that more often that not, courts try to be consistent with previous cases involving similar conduct, but that does not eliminate the possibility that judges will disagree on what the proper sanction should be.

Interestingly, for some reason, these types of disagreements are common in cases involving conduct outside the practice of law.

I am writing about this today because I just saw a story about a recently admitted lawyer in Florida who was suspended for stealing $760.  The lawyer had been admitted to practice but was working as a cashier at the time.  Adding insult to injury, she claimed she stole the money because of the pressure of paying her law student debt.

In any case, back to the topic at hand, the case made its way up to the Florida Supreme Court, where the judges increased the sanction from ten days plus one year probation to a three year suspension.  One dissenting judge argued that was too harsh, but two others argued the lawyer should have been disbarred.

So how do you decide this case?  There is a case in Illinois that summarizes the analysis as asking whether the facts show that the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.

Clearly, a person who steals money should not be trusted to handle other people's money or affairs.  But does that mean that the person should be disbarred in every case?  Does it matter that the amount stolen was relatively low? Does it matter that the lawyer had to pay her student debt (or that some have argued that the debt was caused by a school that allegedly took advantage of her)?

As the author of the article states, "Judges should be flexible on how lawyers should be disciplined. At the same time, practicing lawyers should be on notice that a relatively small crime can lead to disbarment which should deter them from committing similar acts."

In other words, "you always risk disbarment."

Supreme Court adds to the definition of ineffective assistance of counsel

The US Supreme Court recently held (in a 6-3 opinion) that a lawyer renders ineffective assistance of counsel when he or she decides not to file an appeal of a guilty plea despite his client’s request, even if the client waived his right to appeal in the plea agreement.  The case is called Garza v. Idaho, and you can read the opinion here.  You can also find all the relevant documents in the case here.

I haven't had a chance to read the opinion myself, so I will limit the post to a link to this summary and analysis.

A few stories this week had to do with lawyers getting in trouble for things they said -- UPDATED

A prominent metro Detroit attorney is facing new claims of professional misconduct for allegedly mouthing off to a young female prosecutor and then, in a Facebook rant, misrepresenting what happened.  Here is the story.

The Florida Bar obtained the emergency suspension of a lawyer who attacked opposing counsel on social media.  You can read more about this story here and here.

A state appeals court ruled that a drug court defendant in Washington state is entitled to a new sentencing hearing because the judge who used expletives and said that the defendant was 'just a criminal,' showed “personal animosity.”  Interestingly, the judge had already been admonished in the past because of similar behavior.  He is no longer a drug court judge.  Here is that story.

Finally, a federal judge in San Francisco ordered a lawyer to pay a $500 sanction for discussing irrelevant and banned evidence in her opening statement in a trial.  Here is the story.

UPDATE 3/12/19:  A judge in Texas, has received a public warning for telling jurors that God told him a sex trafficking defendant was innocent.  See more here and here.

Bullying from the bench

A few days ago, I posted a note with links to stories of lawyers getting in trouble for things they said.  It included two stories about judges.  See here.  Today, I saw the most recent copy of the ABA Journal has a story called "Bullying From the Bench" on recent high profile bad behavior by judges.  You can read it here.

Texas adopts duty to keep up with technology as part of concept of competence

Yesterday I posted that the Washington DC bar is considering adopting the Model Rules' approach to competence which now includes a duty to keep abreast of developments in "technology."

Today I heard that Texas is the most recent state to have adopted this notion.  You can read the details of the story here.

US Supreme Court finds for inmate in claim of ineffective assistance of counsel

The US Supreme Court announced a decision today in which it expanded the notion of ineffective assistance of counsel.  The court ruled for Gilberto Garza Jr., who waived his right to appeal in two plea agreements, then changed his mind and told his lawyer to file an appeal.  The lawyer did not file the appeal notice because of the waiver, and the deadline passed. In a petition for post-conviction relief, Garza argued that his lawyer had provided ineffective assistance.

To prove ineffective assistance, defendants must show that their lawyer’s representation fell below an objective standard of reasonableness, and that the deficiency was prejudicial to the defense.

The issue in the case was whether Garza was entitled to a presumption that his lawyer’s failure to file the notice caused prejudice, a presumption that had been recognized in a 2000 case in which there was no appeal waiver.

Idaho courts had ruled against Garza, finding that he could not make the necessary showing that the deficient performance at issue resulted in prejudice.

Reversing that ruling, the Supreme Court ruled 6-3 that this requirement goes against the rule that prejudice to the defendant should be presumed “when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued.”

The ABA Journal has a story here.

Courthouse News Service has a story here.

Florida opens investigation into whether Representative Matt Gaetz violated rules of professional conduct when he tweeted what some have interpreted to be a threat to Michael Cohen

The Daily Beast is reporting that the Florida Bar has opened an investigation into whether Rep. Matt Gaetz (R-FL) violated professional conduct rules by threatening former Trump lawyer Michael Cohen ahead of Cohen’s congressional testimony on Wednesday.  The full story is here.

Michael Cohen was disbarred yesterday, while he testified in Congress

Michael Cohen is making news everywhere today.  Yesterday he testified (in a private hearing).  Today, he is testifying in a public hearing before the House Oversight and Government Reform Committee.  Cohen's prepared opening statement is available here (in writing).  The video of today's opening statement is available here.  There are some interesting details about what Trump knew and when, but the gist of it is that Trump is a liar, a racist and a con man, or, in other words, nothing we have not heard before. 

But more important for readers of this blog, yesterday the New York Appellate Court issued its opinion officially announcing his disbarment based on his guilty pleas for evasion of assessment of income tax liability in violation of 26 USC § 7201, making false statements to a financial institution in connection with a credit decision in violation of 18 USC §§ 1014 and 2, causing an unlawful corporate contribution in violation of 52 USC §§ 30118(A) and 30109(d)(1)(A), and 18 USC § 2(b), making an excessive campaign contribution in violation of 52 USC §§ 30116(a)(1)(A), 30116(a)(7) and 30109(d)(1)(A), and 18 USC § 2(b), and making false statements to the United States Congress in violation of 18 USC § 1001(a)(2).

The full order is available here.  The Professional Responsibility blog has a summary here.

The Ohio Board of Professional Conduct's recent advisory opinion on conflicts of interest

The Ohio Board of Professional Conduct has issued an advisory opinion which reiterates three basic and uncontroversial principles on conflicts of interest.  The opinion is Advisory Opinion 2019-01 and you can read it in full here. 

The opinion makes three points:

First, the opinion states that, absent informed consent, a lawyer may not undertake representation of an adverse party in an unrelated matter when the lawyer represents current clients with claims pending against the adverse party.  This conclusion should not be surprising.  It is just the basic principle against concurrent conflicts of interest expressed in Model Rule 1.7.

Second, the opinion states that a lawyer may not withdraw from the representation of a current client in order to undertake representation of an adverse party, even if the matters are unrelated.  This is another way of saying that the Board would apply the so-called "hot potato doctrine" which prevents a lawyer from trying to dump a client in order to "convert" the client from a current client into a former client before taking on a new client in a matter adverse to the interests of the converted former client.  I can't say how many jurisdictions have formally adopted the doctrine, but it is pretty well known so I am not surprised by the opinion's position on this.

Third, the opinion states that absent informed consent, a lawyer may not represent a former adverse party in a new matter against a former client if the new matter is the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.  Again, this is not news since it is simply stating the basic principle regarding successive conflicts of interests expressed in Model Rule 1.9. 

Why Lawyers May Not Ethically Be Able To Use Whatsapp

Have you ever tried to install an app, only to get a message saying the app wants to access your contacts?  Do you know why the app needs such access?  Are you violating the duty of confidentiality by providing access to your clients contact information?  If the app won't install unless you allow access to the contacts, do you need client consent to install the app?

Here is an interesting article on the subject.  The article also relates to the duty of competence about technology.

Resolution before ABA House of Delegates regarding companies that offer legal documents online is withdrawn

At a recent meeting of the ABA, the ABA House of Delegates was due to consider a resolution that proposed model rules for companies that offer legal documents online, but the resolution was withdrawn after the ABA Center for Innovation, the Standing Committee on the Delivery of Legal Services, the Business Law Section and the Section of Dispute Resolution argued the proposed guidelines needed more work before going forward.

You can read the proposed resolution here.

According to a story in the ABA Journal, there were concerns regarding warranties, intellectual property and dispute resolution. There was also uncertainty over whether the proposed guidelines would apply to courts offering online forms.  The ABA Journal has more details here.