Thursday, January 29, 2009

ABA to review rule on screening

Next week's National Law Journal (available now online if you have a subscription) will feature an article on the debate on whether the ABA should adopt changes to Model Rule 1.9. Here is an excerpt:

". . . the American Bar Association will consider competing amendments to its ethics rules governing firm-to-firm movement and conflicts of interest. The 400,000-member attorney group will hold its mid-year meeting starting on Feb. 11 in Boston . . .

. . . The recommendation calling for the most significant change — Recommendation 109 — eases the conflict of interest rule by allowing a law firm to "screen" an incoming attorney from the rest of its attorneys and to enable the firm to continue representing its client without the consent of the incoming attorney's former client.

. . . But Lawrence Fox, [the former chairman of the Standing Committee on Ethics and Professional Responsibility and an ABA delegate], said Recommendation 109 puts the convenience of lawyers ahead of the duty of loyalty to clients. . . .Fox supports Recommendation 110, . . . sponsored by the ABA Section of Litigation, . . . which . . . would allow a lawyer, whose participation with a client at a previous firm was not significant and who did not learn material confidential information, to work for an adversary law firm without client consent, so long as the transferring lawyer was screened and provided certification of compliance with screening. Recommendation 110 is a compromise, said Fox, for those who are concerned about restrictions on attorney mobility."

Wednesday, January 28, 2009

US Attorney criticized for "egregious failure" to disclose exculpatory evidence

The ABA reports today that the chief judge of the U.S. District Court for the District of Massachusetts has issued a 42-page ruling blasting the U.S. attorney there over an alleged pattern of violations by his office of a requirement that exculpatory evidence must be disclosed to the defense in criminal cases. "The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government's duties to disclose in cases assigned to this court," writes Chief Judge Mark Wolf in his Jan. 21 opinion. In it, he orders U.S. Attorney Michael Sullivan and an assistant prosecutor, Suzanne Sullivan (who are not related), to file affidavits by Feb. 5 explaining why she and/or the U.S. Attorney's Office should not be sanctioned, reports the Boston Globe.

Monday, January 26, 2009

Duty to disclose client's death

In class we discuss a couple of cases on whether it is misconduct not to disclose the death of a client or of a witness. Today, the Legal Profession Blog reports on a Colorado hearing board decision available here holding that that an experienced personal injury attorney violated ethical standards for not disclosing his client's death. His conduct, however, was worse than that of the attorneys in the cases we read in class. As described in the Legal Profession Blog, the attorney was retained to pursue a claim for injuries that the client had sustained in an automobile accident. While the matter was pending, the client died. The attorney settled the matter with the defendant's insurer without disclosing the death, which the hearing board found to be material. Part of the settlement was $9,000 for pain and suffering, a claim that was extinguished under Colorado law with the client's death. Further, the attorney continued to press claims based on the deceased client's need for future treatment. When the insurer learned of the death from the client's brother, the lawyer falsely claimed he had only recently been advised of the demise. The hearing board found that the lawyer had "acted dishonestly and deceitfully in his negotiations with [the insurer] but that the evidence failed to establish that he committed the felony of attempted theft. The sanction was affirmed by the Colorado Supreme Court.

Wednesday, January 21, 2009

Michigan disciplinary board denies former mayor's petition to set aside disbarment.

Mike Frish of the Legal Profession Blog reports today that the Michigan Attorney Discipline Board yesterday denied the petition of former Detroit Mayor Kwame Kilpatrick to set aside an order of bar license revocation issued on October 31, 2008. He had argued that his criminal plea agreement indicated he would "surrender" his law license without defining that term. Thus, he contended, he had resigned "under objection" and sought to set aside the revocation. The board found that he had unambiguously agreed to revocation and that the resulting order had not been erroneously entered.

Maryland denies admission for delay in disclosure of DWI

Yet another wake up call for students. (See previous ones here, here and here.) The Maryland Court of Appeals recently denied admission to a lawyer who did not disclose a DWI arrest and conviction until after he passed the bar exam. The case is In re Strzempek, Md., available here. The court said that the lawyer's failure to amend his bar application and come clean during his character committee interview showed a lack of candor that torpedoed his effort to prove that he had the good moral character to practice law in Maryland. The court did give credit to the lawyer's statement that he did not come forward sooner because it would have all been moot if he did not pass the Maryland bar examination. The court found that it is not the choice of a candidate for admission whether to disclose and under what conditions.

State does not have standing to challenge LSC Funding

The U.S. Court of Appeals for the Ninth Circuit decided Jan. 8 that the state of Oregon has no valid basis for asserting that federal restrictions on funding of the Legal Services Corp. unconstitutionally infringe on the state's ability to regulate the practice of law within its borders. The case is Oregon v. Legal Services Corp., available here.

Court denies Fee to lawyer who negotiated a milti-million dollar settlement

The U.S. Court of Appeals for the Second Circuit has upheld a district court's decision not to award any fee to an attorney who negotiated a $2.4 million settlement for a brain-damaged infant and his mother in a medical malpractice case (Chen v. Chen Qualified Settlement Trust, 2d Cir., No. 06-1302-cv(L), 1/5/09). The lawyer had submitted a proposed settlement and compromise order with a general list of services rendered, which included obtaining “all medical reports,” but he did not provide any documentation detailing his fee request. He also did not submit an assessment of liability, an expert report, or any documentation of the client's medical condition or projected medical expenses. Calling the information Goldman provided “totally unhelpful,” the district court appointed a special master to recommend whether to approve the settlement and fee request. The special master asked Goldman for additional information several times. He told the special master that he had not obtained any expert reports, records from the client's treating physician, or a “life care plan” regarding Fan's future medical treatment. The special master concluded that, given the lack of documentation, it was impossible to determine whether the settlement amount was reasonable and whether Goldman's fee request was justified. Also, the requested fee exceeded the amount permitted under New York Law a for contingent fees in medical malpractice litigation, and the lawyer had not obtained all medical reports as asserted in his affidavit, the special master noted. After receiving various materials and holding a hearing, the court approved the proposed settlement; however, it completely denied Goldman's fee request and allowed disbursements only to the extent that the lawyer could substantiate them. Goldman's fee application and compromise order was “totally incompetent,” and his initial overcharge was deliberate, the court concluded.

Sixth Circuit: Rule that requires "civility" is not unconstitutional

Jonathan Turley reports today that controversial lawyer Geoffrey Fieger has lost a critical appeal before the United States Court of Appeals for the Sixth Circuit, which reversed a lower court decision in his favor. At issue is a state code requiring “civility for lawyers in their dealings with judges. In a 2-1 decision, the appellate panel ruled that the requirement is not is not unconstitutionally vague. The opinion is available here. Professor Turley's comment is available here. has a story here.

Tuesday, January 20, 2009

Economy hurts Legal Aid

In an article in The New York Times today we are reminded that "Scores of legal aid societies that help poor people with noncriminal cases — like disputes over foreclosures, evictions and eligibility for unemployment benefits — are being forced to cut their staffs and services, even as requests for help have soared." Since, as the article points out "Legal aid groups have long benefited from little-known programs that draw interest earned from short-term deposits that lawyers hold in trust for clients during" many legal aid groups "have been hit hard by the Federal Reserve’s steep reduction of its benchmark interest rate, which finally plunged last month to near zero." The article is available here.

Detroit’s Top Lawyer Resigns Over ‘Ghetto Court’ Remark

The ABA Journal reports today that the chief of Detroit’s law department has resigned in a flap stemming from her reference to one of the city’s courts as “a ghetto court.” Story available here.

Thursday, January 15, 2009

Should exclusionary rule apply in disciplinary proceedings?

Here is an interesting question: should evidence obtained illegally be admissible in a disciplinary hearing? Mike Frisch from Legal Profession Blog reports on a case in Louisiana that says YES:

A Louisiana attorney was arrested on charges of distribution of marijuana. The trial court suppressed the evidence and the criminal charges were dismissed. Bar disciplinary charges were then brought for the criminal conduct. The hearing committee concluded that the exclusionary rule does not apply in bar discipline matters and allowed the [suppressed] evidence.

Civil Contempt abuse

Prof. Jonathan Turley reports today in his blog that civil contempt is one of the most abused areas by prosecutors and courts. He discusses the case of a former Philadelphia-area lawyer, who has been behind bars for nearly 14 years without being charged. This is longer than the sentence he would receive if he had been charged for his conduct as a criminal matter. Turley argues it raises compelling claims under due process and cruel and unusual punishment in my view. Click here for Prof. Turley's comment. Click here for an article on the Wall Street Journal on the subject.

Wednesday, January 14, 2009

Ex Guantanamo prosecutor tells of chaotic system

A military prosecutor who resigned due to ethical qualms says in a court document that the evidence system at Guantanamo is so disorganized that it was impossible to be fair in the prosecution of detainees. The ABA has the story here and here.

The top 100 law blogs

The ABA Journal recently conducted a poll to select the top legal blogs. The voting closed at the end of the year and the results are in. The complete list of the ABA Journal's Top 100 blogs is now available here. The list is organized in the following categories: news, law professors, crime, niche, technology, quirky, careers, students, podcasts and regional. I am happy to report that many of my favorite blogs made the list.

Defense counsel prosecutes his own client

The Milwaukee Journal Sentinel has an interesting story about an attorney in Wisconsin who defended a client in a drunken driving case in Waukesha County Circuit Court and, a week later, served as prosecutor in an unrelated trespassing case against the same client in municipal court in the Town of Oconomowoc.

Professor Jonathan Turley, whose blog was voted the best legal theory blog by the readers of the ABA Journal, has posted a comment on this story in which he concludes:

"So, [the attorney] has confidential information from [the client] as a client and has received money from him — yet Kay sees no problem in serving as a prosecutor against his client. . . .

Municipal Judge Douglas Stern was . . . well . . . stern with Kay. He expressed his unhappiness with the past relationship, saying that it did not “pass the smell test.” . . . .

Tom Martin, a former Town Board member, is critical of Kay, saying “Tim Kay has got his hands in too many pies. He’s in with the good old boys.”

It is hard to see how an attorney could conclude that these arrangements do not violate basic principles of professional conduct and legal ethics."

Prof. Turley's comment is available here.

Thursday, January 8, 2009

Another case of a lawyer sleeping during trial

You may remember the decision of a Court of Appeals in Texas a few years ago found no ineffective assistance of counsel even though the defendant's attorney slept through part of the trial. Based on this questionable precedent the Arkansas Supreme Court decided the same way. In this case, however, there was more than one counsel for the defendant and apparently at least one of them was awake at all times. The blog Law of Criminal Defense has a report here. The opinion can be found here. Thanks to Alan Childress from the Legal Profession Blog for pointing it out here.

Disturbing law out of criminal justice system

Here is a link to an older post in the Legal Ethics Forum pointing out a number of examples of how "Our country’s criminal justice system regularly produces disturbing law, particularly in death penalty cases."

Why the golf theme?

Someone asked me why I have placed a golf course photo on this site. The answer is that it is 15 degrees (1 degree with wind chill), gray and there is snow everywhere. Given that I am not skiing anymore, I need something to look forward to.

Wednesday, January 7, 2009

Sanctions for first degree murder?

A couple of days ago I posted a note about a decision imposing sanctions on an attorney who had been convicted of bank robbery. Today the Legal Profession Blog reports on a decision disbarring an attorney who had been convicted of first degree murder. Seems like a no brainer to me.

Court requires allegation of violation of duty of loyalty or confidentiality to support a breach of fiduciary duty claim

The ABA/BNA Lawyers' Manual on Professional Conduct reports on a case that highlights again the debated distinction between claims for malpractice based on negligent conduct and on a breach of a fiduciary duty. The case involved a client who claimed that his former lawyer broke a promise to secure certain witnesses for a post-conviction evidentiary hearing and that the lawyer's lapse doomed any chance of post-conviction success. The Court affirmed the dismissal of the claim because the plaintiff failed to allege that the lawyer breached a fiduciary duty. The Court found it imporntant that the former client did not claim that the lawyer violated client confidences, harbored divided loyalties, or put the interests of others ahead of the client's interests. It held that in a suit for breach of fiduciary suit, it is not enough to charge that a lawyer failed to exercise due care. A claim for breach of fiduciary duty must allege some shortcoming related to the lawyer's obligations of loyalty or confidentiality. The court remanded the case, however, and directed the trial court to allow the former client—a pro se plaintiff sitting in prison—a reasonable opportunity to amend his petition. (Costa v. Allen, Mo., No. SC89177, 11/25/08).

Law Firm Representing Itself Is Not Eligible for Fee Award

The most recent edition of the ABA/BNA Lawyers' Manual on Professional Conduct has a number of interesting new items, including an article on a case where the Nevada Supreme Court ruled that a trial court may not award attorneys' fees to a law firm that used its own lawyers to litigate a fee dispute with a former client. (Frank Settelmeyer & Sons Inc. v. Smith & Harmer Ltd., Nev., No. 45180, 12/24/08). The Court pointed out that litigants are only entitled to reimbursement for their attorneys' fees if they are genuinely obligated to pay those fees. Lawyers who represent themselves have no such obligation. You can find the article online if you have a subscription to the ABA/BNA service. In print, the cite is 25 Law. Man. Prof. Conduct 7.

Kill the billable hour

Here is an interesting short article by a partner at a very well known firm calling for the elimination of the billable hour. He suggests lawyers should bill by negotiating a fixed fee with the client for the particular job with some leeway to renegotiate after an agreed period of time if the job turns out to be more complex or will take more time than originally agreed. The article is available here. Make sure you check out the comments below the article most of which are very critical.

UPDATE: Here is a link to a comment on the article published in The National Law Journal .com.

Posted originally by Legal Ethics Forum.

Tuesday, January 6, 2009

Is a fee of $100,000 a day unreasonable?

The ABA reports:

A $100,000-a-day fee application by Dewey & LeBeouf for receivership work is excessive, according to a federal judge in New York City. U.S. District Judge Denny Chin said Dewey provided "extensive and outstanding legal services,” but it had overstaffed and overworked the case, the American Lawyer reports. He cut more than $400,000 from the law firm’s request for $2.1 million in fees as receiver for WexTrust Capital.

The law firm was appointed as receiver to safeguard the trust’s assets after the Securities and Exchange Commission sued, claiming the trust was operating as a Ponzi scheme that targeted the Orthodox Jewish community.

The fee request is “excessive in the context of a securities receivership where hundreds of victims of fraud have suffered substantial losses,” Chin wrote in a Dec. 30 opinion (PDF posted by the American Lawyer). He said the law firm can reapply for disallowed fees at the conclusion of the case based on its success recovering funds.

Chin’s ruling came after he raised questions about the firm’s billing rates, which were as high as $950 an hour for some partners, $605 an hour for some associates, and $285 an hour for summer associates.

Monday, January 5, 2009

How not to practice law: engage in armed bank robbery

We start the year with a new entry into Bernabe's how not to practice law list: engage in bank robbery. This is the message of the Louisiana Attorney Disciplinary Board in a recent decision (available here) in which the Board orders the disbarrment of an attorney who had been convicted of bank robbery.

Thanks to Legal Profession Blog for the information.

Friday, January 2, 2009

To screen or not to screen

Next month the ABA House of Delegates will take up Report 109, which recommends amending MR 1.10 to allow so-called "screening." This means that a firm could avoid being imputed with a conflict when a new attorney joins the firm if the firm implements "institutional mechanisms" to assure that the attorney will be screened from all information regarding the particular matter in which he or she has a conflict. This has always been a highly contested issue. Stay tuned!

Another wake up call for students: make sure you check that resume!

The Legal Profession Blog reports today on a California Bar decision in which an attorney was suspended for one year (although stayed; actual suspension was 60-days), placed on two years of probation and was ordered to take the MPRE within one year, for submitting an outdated resume to a prospective employer. The lawyer left the law firm where he worked when it downsized. However, his new resume was not ready when he heard about a job opening, so he submitted an old version, without revising the dates of his previous employment. The resume gave the impression that he was still employed.