Book Review on "A Modern Legal Ethics"

Profs. Monroe Freedman and Abbe Smith, authors of Understanding Legal Ethics, a book I often recommend to my students, have written a review of Daniel Markovits's A Modern Legal Ethics which will be published in the Michigan Law Review.

Here is an abstract of the review, which is titled, Misunderstanding Lawyers' Ethics: "The authors argue that Daniel Markovits's recently published book, A Modern Legal Ethics, fundamentally misunderstands what lawyers do on behalf of clients in an adversary system, and how lawyers feel about it. Freedman and Smith argue that not only is Markovits mistaken about the widespread unhappiness of lawyers, he is also misguided in pointing to “lying” and “cheating” as the source of unhappiness and “guilt.” Moreover, the authors argue that Markovits’s proposed “ethic” for rescuing the legal profession is superficial wordplay—ironically derivative of the adversarial advocacy he condemns."

Thanks to the Legal Ethics Forum for the information.

Court of Appeals for the 9th Circuit upholds restrictions on legal aid funding

In 1996, Congress attached certain rules to the budget of the Legal Services Corp., which funds lawyers for the poor in civil cases, in order to restrict Legal Aid lawyers' representation of their low-income clients. The restrictions, contained in each succeeding budget, prohibit the lawyers from filing class-action suits on behalf of numerous clients. They also bar attorneys from seeking fees that are usually awarded to the winning side in cases involving individual rights, and from lobbying for changes in the law. The rules were challenged in court but this past Monday they survived a federal appeals court test Monday in San Francisco. Go here for the full story from the San Francisco Chronicle.

The year of the flat fees?

Commentators continue to announce the death of the billable hour. This short news item from the Wall Street Journal Law Blog has a bit of evidence to back it up. I think it is too early to announce "the year of the flat fee" but I may be wrong.... Go here for the full story.

UPDATE: Here is a link to another story on the same topic.

Illinois Appellate Court reverses conviction for violation of right to counsel

The appellate court of Illinois (second district) has just issued an opinion in which it reversed a conviction because the trial judge frailed to admonish the defendant of his right to counsel before allowing him to represent himself. For this reason, the Court held that the trial court deprived the defendant of his right to counsel at a critical stage of the proceedings and remanded the case for a new trial. The case is called People v. Vernón and is available here.

Editorial on the death penalty case tried by a judge who was having an affair with the prosecutor

Back in September I commented on the news that the Texas Court of Criminal Appeals — the state’s supreme court on criminal matters — ruled that a man facing the death penalty would not get a new trial despite the fact that the prosecutor and the judge were involved in a romantic affair during the trial. See here.

A few days ago, the National Law Journal and Law.com published a short editorial on the case here.

Should attorney be disciplined even though malpractice claim is dismissed?

Here is an interesting fact scenario courtesy of the Legal Profession Blog: a client retained a lawyer to pursue an employment discrimination claim. The attorney did not respond to the employer's motion for summary judgment and the case was dismissed. The client then turned around and sued the attorney for malpractice arguing he was negligent in handling the case, but the trial court dismissed the complaint because the plaintiff could not establish the element of cause in fact. Because the original case appeared to be very weak, it did not look that the client would have won the original case had it not been for the negligent conduct of the attorney.

As any first year torts student knows, this is the so-called "case within the case" problem that legal malpractice plaintiffs face. They have to argue and prove that they would have won the original case and this is extremely difficult to do in most cases.

Interestingly, the court found a way around it. The court remanded on a contract claim to consider damages for the lawyer's failure to do the work for which he had been paid.

There is another point I find interesting about this scenario and that is whether the facts support the imposition of discipline. Does the fact that the client could not support his claim of malpractice mean that the attorney's conduct should be 'excused'?

Obviously not. If the attorney's conduct reflects that he violated his duties of competence and diligence (and it certainly looks like it does in this case), the court should refer the case to the disciplinary authorities regardless of the ruling on the malpractice question. In this case, it appears that there had been a disciplinary hearing already but the court does not explain what had been the basis for it.

The opinion is available here.

More on whether humiliating punishment is proper prosecutiorial/judicial discretion

A few days ago, I posted a comment on the issue of whether humiliation is a proper punishment in our criminal justice system or whether it should be considered an abuse of prosecutorial or judicial discretion. My comment originated in a story originally published by Prof. Jonathan Turley in his blog. A couple of days later, Prof. Turley expressed his view on this topic in an editorial published by USA Today. I am copying it here in full:

Shame is back in the United States with a vengeance.

Across the country, judges and prosecutors and jailers are freelancing by imposing their own brands of retributive justice: forcing people to wear humiliating clothing, parade in public and even sleep in doghouses. The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.

Two weeks ago, citizens of Bedford, Pa., were able to gawk at Evelyn Border, 55, and her daughter, Tina Griekspoor, 35. The two had been caught stealing from a child and were told by the local prosecutor that unless they performed a publicly humiliating act, they would be hit with heavy charges. They agreed to appear in front of the courthouse holding signs reading, “I stole from a 9-year-old on her birthday! Don’t steal or this could happen to you!” Such scenes are being repeated across the country as citizens are told to choose between degrading public acts or long jail sentences.

Shaming punishments are a return to primitive practices common before the American Revolution, when people were forced into public pillories, marked with scarlet letters or forced into forms of public humiliation, including degrading signs. These shaming punishments declined after the Founding Fathers sought to modernize the criminal justice system and to require consistent punishments.

Gum, manure and doghouses

Elected state judges have found that many citizens relish the humiliation of others. Georgia Judge Rusty Carlisle does not deny that he is trying to degrade people who come before him. In one case, a defendant seemed “kind of cocky” in a minor littering case, so Carlisle ordered him to scrape the gum off the bottoms of the court benches with a butter knife while people watched. The “King of Shame” was Texas Judge Ted Poe, who insisted that “people have too good a self-esteem,” so he made them do things such as shovel manure to abase them. What Poe called “Poetic justice” has little to do with actual justice. It is a form of entertainment that sacrifices our most fundamental principles to satisfy our most base impulses. Judges give the public displays of retribution by using citizens as virtual props in their personal theater of the absurd.

In 2003, Texas Judge Buddie Hahn gave an abusive father a choice between spending 30 days in jail or 30 nights sleeping in a doghouse (He chose the doghouse to be able to keep his job). Likewise, in Ohio, municipal Judge Michael Cicconetti sentenced two teens found guilty of breaking into a church on Christmas Eve 2002 to march through town with a donkey and a sign reading, “Sorry for the Jackass Offense.” Cicconetti later ordered a woman to be taken to a remote location to sleep outside for abandoning kittens in parks.

Studies have actually shown limited value in humiliation as a punishment in terms of actual deterrence in crime. Its principle value is found in the political rather than the criminal system. Indeed, Poe used the popularity of his creative punishments to secure a seat in Congress in 2004.

Now, prosecutors and jailers are trying to cut in on the shaming action. In the Bedford case, the punishment was not ordered by a judge but by a prosecutor, Bedford District Attorney Bill Higgins, who promised to seek probation if they demeaned themselves.

“Giving the people what they want” can sometimes get them to forget what they don’t want — like the bread and circuses of Roman emperors. For example, Higgins was dogged by allegations of adultery and having sex in the very courthouse where he paraded Border and her daughter. Though he faced a criminal complaint and admitted to adultery, no one is calling for Higgins to wear a placard as an adulterer. Instead, he is being heralded for parading the two petty thieves.

Likewise, Arizona Sheriff Joe Arpaio has long faced complaints over his heavy-handed tactics against both citizens and illegal immigrants. However, most people know him only as the guy who forced male inmates to wear pink underwear to humiliate them.

Inventing justice

Some judges have faced charges over their meting out personal justice but have received little punishment. Gustavo “Gus” Garza, a justice of the peace in Texas, was given only an admonishment last year when he forced parents to spank their children in front of him in court to avoid heavy fines. In another spanking case, former Alabama judge Herman Thomas actually used shaming punishments as a criminal defense. Thomas was recently acquitted of sodomy and assault after he allegedly took inmates from their cells for spankings and sex in his chambers. Despite testimony alleging spanking and sodomy, Thomas’ lawyer insisted that the judge was merely “mentoring them” and trying to turn them into “productive citizens” in dealing with them in chambers.

All criminal sentences produce shame for most citizens. But there is a difference between shame from a punishment and shame as a punishment. These judges are inventing their own forms of retributive justice like little Caesars toying with citizens. It is a threat to the basic principles of our legal system. It is an abuse of not just the criminal code but of the criminals themselves. It is not just wrong. It is, in a word, shameful.

Court rules against the deputy who stole document from attorney

A few days ago, I posted and commented on a video of a deputy stealing a document from a defense attorney in the middle of a court proceeding in Arizona. (See here). Yesterday it was reported that the deputy has been found guilty of contempt for his actions. Some have criticized the penalty as too lenient, while the County Sheriff (who is referred to in one of the stories as "the most controversial sheriff in the country" who "is routinely accused of abusive practices") openly challenged it and accused the judge of pursuing a political agenda against the County Sheriff's office.

What I find more interesting here is the penalty imposed. The judge sentenced the officer to either apologize to the defendant's attorney at a press conference or report to jail. In addition, the order states that even if the deputy apologizes, if the attorney does not find that the apology "was sufficient," the officer would have to report to jail. For a copy of the decision, go here.

It is very strange that the judge essentially leaves it to the defense attorney to decide if the deputy should serve jail time. Essentially, the judge is telling the attorney that the attorney can decide what the appropriate sentence should be.

The requirement of the apology itself also raises the question of whether it is proper to use "shaming" as a punishment, which has been the subject of some discussion in the past few days.

Here are a few links on the story:

News accounts of the sentencing and the response by the Sheriff: here and here (including a video of the Sheriff accusing the judge of bias against his office).

Commentary on the sentence: here and here (on why the officer should have been charged with a crime for stealing property).

Podcast on the right to court appointed representation in civil cases

As previously reported, California recently enacted a pilot program that will provide lawyers for indigent clients in civil cases. See my posts on October 13 and October 27.

Here is a link to a podcast of a discussion on what some people are referring to now as the "civil Gideon" movement. The name comes from the Supreme Court's 1963 decision Gideon v. Wainwright which guaranteed that criminal defendants unable to afford their own lawyer would have one appointed at the public's expense. Should there be a corollary right in at least certain types of civil cases? Go here to listen to the discussion. Note that the first few seconds of the podcast are the end of a previous segment; keep listening for the beginning of the segment on "civil Gideon".

Thanks to the Media Law Blog for the information.

California to consider advance conflicts waivers and other changes to its Rules of Prof Conduct

Law.com is reporting today that the California State Bar governors "face the difficult task this week of deciding whether to approve 45 changes in the Rules of Professional Conduct, including an especially controversial one that would let lawyers seek advance conflict-of-interest waivers from clients. Thirteen law professors from around the state have come out against the waiver proposal, saying it would put clients in the position of consenting to conflicts that cannot possibly be known." Go here for the full story and here for a comment on Legal Ethics Forum. Go here for a memo to the Board of Governors discussing the proposals.

How long should a state be allowed to keep a defendant jailed w/out trial bec it can't afford to provide legal representation to indigent defendants

The Atlanta Journal Constitution reports today (here) that in a case argued yesterday before the Georgia Supreme Court a defendant argued the charges against him should be dismissed (or, at least, that the state should not be allowed to seek the death penalty) because he has been in jail for nearly four years without a trial in violation of his right to a speedy trial. Why has this defendant been held in custody for so long without a trial, you ask? Because the state cannot afford to pay for the man's representation. In other words, the defendant has a right to get the state to provide representation, but the state has no money to do it, so the defendant sits in jail without a trial.

Humiliating punishment: is it proper prosecutiorial discretion?

Last week, Professor Jonathan Turley posted a comment in his website about the fact that some prosecutors are negotiating plea agreements that force citizens to commit acts of humiliation in order to avoid having to face arsh sentence demands. See here. For an older post on the same subject go here.

In the most recent case, a mother and daughter were sentenced to sit outside a courthouse with a sign that stated they stole a gift card from a 9-year-old girl on her birthday. Go to the link above for photos.

Prof. Turley argues this is an erosion of professionalism and our legal system and that public humiliation has little to do with justice in our system. What do you think? Should this type of punishment be considered appropriate use of prosecutorial discretion in seeking alternatives to incarceration? Should judges refuse to approve the plea agreements?

Deputy steals document from defense counsel's file in the middle of court hearing

As part of our discussion of misconduct during discovery, last night I told my students the story of how one time a lawyer tried to steal a document during a deposition I was taking right in front of my eyes. Thus, I could not believe it when I saw this video (below) which has been going around the internet like crazy over the last couple of days. It shows a deputy stealing a document from a defense attorney's file. The attorney quickly displays her concern and anger, which was completely understandable and appropriate. In contrast, the judge didn't seem to be too bothered.

For commentary on the video go to Prof. Jonathan Turley's website here and the Legal Ethics Forum here. More on the story here and here.

NJ rules changed to allow attorneys to advertise they are in Super Lawyers

Recently I noted the issue of whether a lawyer who is included in the publication "Super Lawyers" should be allowed to publicize that he or she is a super lawyer? See my previous post here. I mentioned then that the New Jersey Supreme Court was debating whether to amend its rules to allow that type of publicity.

The Court has now announced changes to the state's ethics rules to allow lawyers to mention their inclusion in Super Lawyers, Best Lawyers in America or Martindale-Hubbell AV rankings. The changes take effect immediately. Go here for more on the story.

Attorney - client dispute about discovery sanctions

Last night we spent our entire class time talking about misconduct within the limits of the adversary system and most of that time was spent talking about misconduct during the process of discovery in civil cases.

Coincidently, today I saw a related item in the Wall Street Journal law blog. The story starts by stating that discovery disputes "most of them occur most often in regard to opposing counsel, who always seem to be asking for more than you have or claiming to have less than you want" which describes the types of issues we discussed in class last night. But then the story goes on to discuss the on-going dispute between a firm and its own client over the fact that the court imposed sanctions ON THE FIRM because the client failed to disclose information during discovery.

In class, we discussed the famouse Fisons case, where the court imposed sanctions on a firm for its "gamesmanship" and attempts to avoid disclosing a "smoking gun document." In the case discussed in the Wall Street Journal, though, the firm claims it did not disclose the documents in question because the client misled the firm. The firm claims the sanctions should be paid by the client, not by the firm. Go here and here for the full story. Go here for commentary in the Legal Ethics Forum.

Supreme Court hears oral arguments in case re prosecutorial immunity

Yesterday, the Supreme Court heard oral arguments in Pottawattamie County, Iowa v. Harrington, which deals with whether prosecutors should be granted absolute immunity for their conduct in the process of investigating (rather than prosecuting) a case. For a summary of the facts and the issue take a look at my previous posts here and here. For a very good summary and comments on the oral argument go to the Wall Street Journal law blog here amd Law.com here.

Texas looking to amend Rules of Professional Conduct

For the first time in almost 20 years, the Texas Supreme Court has proposed comprehensive changes in the state's disciplinary rules for lawyers, including major amendments to conflicts rules and a new rule prohibiting lawyers from having sex with clients. Go here for the full story.

Sedona Conference principles of cooperation in discovery

As we get ready (in my class) to start our discussion of examples of misconduct in the process of discovery in civil litigation, here is a link to an article (with more helpful links) about the Sedona Conference cooperation proclamation. The Sedona Conference is a nonprofit research and educational institute whose members are judges, attorneys and academics, that has hosted conferences and published papers and guidelines suggesting alternative ways to conduct civil discovery. More than anything else, the Conference emphasizes the need to avoid "discovery disputes" and to adopt a view of discovery based on cooperation. The Conference's most recent publication, the The Sedona Conference Cooperation Proclamation (July 2008), is available here.