Comment on crisis re access to representation

Tort Deform Blog has published a short comment on the crisis regarding lack of access to legal representation in civil cases. Among other things, it points out that "although 50 percent of New Mexicans qualify for Legal Aid services based on income, the entire state has only 43 attorneys working for Legal Aid." This is very troubling. See the full comment here.

More on whether authors of "torture memos" should be disciplined

I have posted before on the debate regarding whether the drafters of the "torture memos" should be disciplined for violations of ethical duties (see here). Much has happened since I last posted on this issue.

Today, the Blog of the Legal Times reports that a collection of organizations have filed complaints with five state bar associations, accusing former attorneys general John Ashcroft, Alberto Gonzales, Michael Mukasey, John Yoo, Jay Bybee, Stephen Bradbury and a number of other former Bush administration lawyers of violating professional standards by sanctioning the use of torture on terrorism suspects. The complaints can be viewed here.

Professor David Luban, who testified today before the Senate Judiciary Committee has published his testimony here. In it, he argues that "the memos are an ethical train wreck" and that the they "fall far short of professional standards of candid advice and independent judgment."

The Washington Post also has an article on the subject here.

More on Pres. Obama's military tribunals

Here is a link to a good article on Pres. Obama's decision to resume the use of Bush era military tribunals by Joanne Mariner, the Terrorism and Counterterrorism Program Director at Human Rights Watch. The article starts like this:

"[L]ast Friday, the Obama administration announced that it would resume trials of Guantanamo detainees by military commissions, albeit under new rules that would offer defendants greater legal protections. . . . While the revised commissions improve somewhat on the model used by the Bush administration, they still fall far short of providing the due process guarantees found in U.S. federal courts.

Unsurprisingly, Republicans are jubilant. Portraying Obama's reversal as a belated embrace of the Bush administration's war on terror, their tone is unabashedly triumphant.
"With some minor changes, he really is following the same path President Bush pursued," declared [Ari] Fleischer. "He has now decided to preserve a tribunal process that will be identical in every material way to the one favored by Dick Cheney," crowed the Wall Street Journal.

This is not change we can believe in."

The full article is available here.

Obama to continue use of military tribunals

The Obama administration has announced it will restart the controversial Bush military tribunal system. The tribunal system has been widely criticized and a number of prosecutors have resigned their positions due to ethical concerns. For more information on this you can do a search for news items, particularly on the case of Army Lt. Col. Darrell Vandeveld who announced he resigned because he had grave doubts about the integrity of the system. For articles on this go here, here and here.

Article on what clients should think about when discussing hourly rates

Here is a link to an interesting article on the debate over hourly fee rates.

As the article states, "the imminent demise of the billable hour has been confidently predicted for years, maybe now more than ever. And yet,. . . the billable hour somehow manages to survive. The hourly rate -- at least until it finally dies -- is one of the knottiest aspects of the relationship between lawyers and their clients. The hourly rate problem can become a trap."

The article goes on to discuss what it calls "the fundamental problem with the billable hour" which is "how does one measure the value of a lawyer's time?" and provides five good reasons "why clients shouldn't fall into the "hourly rate trap," i.e. allowing retention decisions to be guided principally by hourly rates."

Illinois appellate court reverses conviction for ineffective assistance of cousel

In a rare victory for criminal defendants, the Chicago Daily Bulletin reports that the 5th District Appellate Court of Illinois has reversed two murder convictions finding that their trial attorney provided ineffective assistance of counsel for failing to present any evidence.

In his opening statement, defense counsel said repeatedly that the defendants would testify in their defense and that the jury would hear testimony implicated other suspects and that the physical evidence in the case implicated those suspects but not the defendants. However, after the prosecution rested, defense counsel rested without presenting any evidence.

The Daily Bulleting states that "as for his failure to present any evidence, defense counsel said: ''I'll hope you forgive me for not extending the trial about another week and not putting on any evidence. I ask you not to hold that against my clients; that is my decision because I thought we've had enough.''

The trial court denied the defendants' post-trial motions, finding that defense counsel had conducted a ''significant and meaningful adversarial testing'' of the state's case.

On appeal, the defendants argued that their convictions should be reversed because their attorney was ineffective for failing to call any witnesses in their defense. The appeals court agreed and reversed. The appeals court said that counsel may be deemed ineffective ''if he promises that a particular witness will testify during his opening statement but does not provide the promised testimony during trial'' and that "[w]e cannot conclude . . . that the resulting prejudice was harmless.'' The Court also stated that "[a]fter promising and suggesting that the jury would hear evidence supporting the defense, counsel failed to present any evidence whatsoever and his stated reasons for failing to do so are not reasonable explanations.''

The case is People v Bryant and it is available here.

Lack of funding affects representation of indigent defendants

I have blogged before about the problems in our criminal justice sytem due to the inadequate funding for programs that provide representation to indigent defendants. (See here).

Similarly, The National Law Journal.com is reporting today, that "an ongoing state funding shortage has left a number of indigent criminal defendants in Georgia without lawyers and that "a chronic problem of unpaid state legal bills, especially in expensive capital cases in which Georgia's public defenders are conflicted out of the representation, has made private lawyers unwilling to take on such cases, reports the Atlanta Journal-Constitution."

Are firms overbilling for online research?

Assume a firm has an account with an online research service like Westlaw or Lexis according to which the firm pays a flat fee for using the service. Then assume the firm conducts certain research for a client and charges the client hourly fees to perform the research. Is that firm overbilling the client?

Some people are arguing that some firms are "using Westlaw and Lexis as profit centers" and, as the National Law Journal.com is reporting today, at least one lawsuit has been filed claiming unjust enrichment against a firm that billed a client $20,000 for online legal research that cost the law firm only $5,000.

I have not seen the complaint in this case, so I don't really know what the allegation is, but I am guessing the issue here depends on what it is the firm is billing the client for. If the firm is billing the client for the value of the lawyer's time in doing the research, the firm should be free to charge the hourly fee. If, on the other hand, the firm is charging the client for "expenses" then the firm should only charge the client the actual value the firm is spending on the expenses.

Study Claims Bankruptcy Lawyers Are Billing Illegally

In a recent story published in the ABA Journal.com, Debra Cassens Weiss states that "A new study claims bankruptcy lawyers are billing their clients illegally by failing to get court approval before collecting fees. The study found that the lawyers bill bankrupt companies for about 80 percent of their fees without first submitting the charges to a judge as required by the U.S. Bankruptcy Code, Bloomberg reports. The study says the fees are instead reviewed later, but the payments “are harder to reverse than to prevent," according to accounts in the American Lawyer and the Wall Street Journal Law Blog."

The ABAJournal.com story is here. For a story on Law.com on the same topic go here