Tuesday, December 22, 2009

Pres. Obama's strange nomination for legal aid agency

A few days ago, President Obama announced his intention to nominate Sharon Browne to the board of directors of the Legal Services Corporation (LSC). This nomination is a bit baffling. Ms. Brown is a principal attorney and member of the senior management at the conservative Pacific Legal Foundation, an organization that opposes much of what Legal Services stands for and that has supported attempts to block funding for Legal Services agencies. The National Lawyers' Guild has formally called on Pres. Obama to withdraw the nomination. Go here for more on the story and here for the NLG's press release.

Another end of the year top 10 list

A few days ago I commented that this is the time of the year when you start to see "top ten lists"... Here is another one: New York Personal Injury Blog's Year in Review list. It has links to the blog's favorite items of the year. There is a lot of interesting stuff here. Some are related to torts, some are related to professional responsibility and ethics. Take a look.

Wash State Bar Approves Attorney's Plan To Split Fees With Foreign Law Consultant

A recently released Washington bar's ethics committee concludes that lawyers in the state of Washington may accept referrals from foreign law consultants and hire them to provide translation and paralegal services to the referred clients. The division of legal fees between licensed Washington attorneys and foreign lawyers is not prohibited, but the committee cautioned that counsel must structure the arrangement in a way that does not facilitate the consultant's unauthorized practice, and that the lawyer cannot use the arrangement to get around the ban against paying for referrals. The Opinion (Washington State Bar Ass'n Rules of Professional Conduct Comm., Informal Op. 2201) is available here.

Sunday, December 20, 2009

Whistleblower gets recognized as most influential person in business ethics

John Kopschinski, a former sales rep whose lawsuit led to the record breaking, eye rolling, jaw dropping $2.3 billion settlement, exposed pharmaceutical giant Pfizer's illegal sales and marketing efforts to promote its Bextra painkiller, was named the most influential person in the world of business ethics by the Ethisphere Institute. Go here for more on the story.

More problems in New York

A few days ago, I posted a story about the apparently prevalent practice among the NYPD to falsify records. (See two posts below this). Now comes news that District Attorneys in 44 of New York's 62 counties should review scores of closed criminal cases because a forensic scientist working for the state police routinely failed to perform mandatory tests on crime scene trace evidence like hair fibers and then fraudulently wrote up results. Go here for the full story on Law.com.

End of the year "top ten lists"

Tis that time of the year... As we get closer to the end of the year, we will see "top ten lists" pop up all over ... "top ten cases of the year"... "top ten worst decisions"... "top ten things to keep an eye on for next year" ...and so onIn fact, I promise that I will prepare my own top ten list at some point and publish it here, but for now I am going to link to the ones that start coming up here and there.

And here is the first list of the year. It comes from the Legal Ethics Forum Blog and it is called Top Ten Legal Ethics Stories of 2009. It is an excellent post which includes several lists, actually: the main list is the most important stories, but then there is a list of "honorable mentions" which includes cases, 'scandals', rules changes and ethics opinions.

I don't think there is anything to add to this very carefully prepared collection!

ps: one of the stories in the honorable mention category links to a post that mentions me and one of my comments on this blog!

Thursday, December 17, 2009

Famous federal judge claims NYPD has record of falsification by arresting officers

Famous federal judge Jack Weinstein has lashed out at the New York Police Department, accusing the department of a proven record of “widespread falsification by arresting officers.” In a four-page decision refusing to throw out a multimillion dollar suit against the city filed by two men who were busted on bogus narcotics charges, Weinstein wrote that "[i]nformal inquiry by [myself] and among the judges of this court, as well as knowledge of cases in other federal and state courts ... has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department." He said that while the vast majority of cops don't engage in crooked practices, it was common enough to be an institutional problem. For more on this story go here and here.

An important related question has to be what role, if any, are prosecutors playing in the creation, development or use of falsified evidence?

Podcast on value billing as an alternative to hourly fees

Once again, there is a lot of talk about the death of the billable hour and the rise of alternative billing methods. Here is a link to a podcast of a discussion on the subject of value billing.

Transcript of the order re prosecutorial misconduct

Yesterday I posted that prosecutorial misconduct resulted in dismissal of charges in a high profile stock-option backdating case. Here is the transcript of the decision (courtesy of the Wall Street Journal and the Legal Ethics Forum).

Tuesday, December 15, 2009

Prosecutorial misconduct results in dismissal of charges

A federal judge has dismissed fraud and conspiracy charges against Broadcom Corp. co-founder Henry T. Nicholas and former Chief Financial Officer William Ruehle in a stock-option backdating case because of prosecutorial misconduct. The prosecutors tried to prevent three key defense witnesses from testifying, improperly contacted attorneys for defense witnesses and leaked information about grand jury proceedings to the media. More on the story here.

Congress boosts Legal Services ...but not much

Last September, the Legal Services Corp., which distributes funding nationwide for civil legal representation of the poor, released a report saying about half of Americans who need civil legal assistance are not able to get it because of limited resources. Sen. Tom Harkin (D-Iowa) proposed increasing the LSC's budget up to $750 million, an increase of 92.3 percent from last year, but, the 2010 spending package on its way to President Barack Obama's desk will give the LSC a much smaller boost. The LSC will receive $420 million this fiscal year, up from $390 million last year (a 7.7 percent increase). This is far less than many had hoped for--but an increase nonetheless.

On the other hand, the new appropriations bill introduces a very positive change. In 1996, President Clinton signed a bill that, among other anti-legal services provisions, barred legal services programs funded through the federal Legal Services Corporation from seeking statutory attorney fees in cases that they won or settled on behalf of their impoverished clients. This provision hurt already cash-strapped poverty law programs around the nation. The new appropriations bill will allow the agency's grant recipients to pursue attorney fees for the first time in more than a decade. Go here for more on this story.

Monday, December 14, 2009

More allegations of prosecutorial misconduct; Second Circuit rules protected by immunity

A criminal defendant who was wrongfully convicted of murder cannot sue prosecutors for their delay in disclosing the exculpatory results of post-conviction DNA test results, the U.S. Court of Appeals for the Second Circuit held Nov. 13 in Warney v. Monroe County, available here.

The court decided that the prosecutors were acting in furtherance of their role as advocates for the state when they made their decision regarding the timing of their disclosure, thus entitling them to absolute immunity from civil liability for their conduct.

"Advocates for the state"? Hmm; I thought prosecutors are supposed to be "ministers of justice" not mere advocates....

In this case, a mentally retarded man was convicted of murder. While he pursued post-conviction relief, the prosecutor received a written report revealing that—contrary to their theory at trial—all the blood at the scene (other than the victim's) belonged to one person and that one person was not the defendant. The prosecutors did not, however, disclose this information until 72 days after they had received the initial report. Eventually, the defendant was released and he filed a federal civil rights lawsuit claiming that prosecutors' foot-dragging prolonged his incarceration in violation of his right to due process.

The Court found the prosecutor was functioning as an advocate, rather than as an investigator or administrator, when he engaged in the conduct at issue and, thus, is protected from liability.
The Second Circuit observed that distinguishing between advocacy and administration is especially difficult with respect to prosecutors' conduct in collateral proceedings because “the ‘judicial phase’ is technically finished” but held that the prosecutor deserved “absolute immunity because his conduct was part of "the prosecutor's role as an advocate for the state.”

Thanks to the Legal Ethics Forum for the information.

Book Review: The Idiot's Guide to the Criminal Justice System

Here is a link to a review of the book The Complete Idiot's Guide to the Criminal Justice System. I have not seen the book, so I can't say whether I agree with the review, but I thought it was interesting. Hint: the reviewer did not like the book. Among other things, he says, "As I am politically against burning books, I won't suggest it. Bury it. Bury it deep. Oh what the heck, if ever a book needed burning, this is it."

More on judges using facebook

The Legal Profession Blog is reporting that the South Carolina Advisory Committee on Standards of Judicial Conduct has published an opinion that concludes that a judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate. See here.

Note how this is a different approach than the one taken by the Florida Bar in an opinion I mentioned a couple of days ago. See here. For an article in the New York Times about the Florida Bar opinion go here.

Thursday, December 10, 2009

New rule re conditional admission in Florida

The Legal Profession Blog is reporting today that the Florida Supreme Court has announced the adoption of a new rule that limits the confidential conditional admission feature to persons who are permanent Florida residents, who will engage in practice primarily in Florida and who "can and will be monitored in Florida." the court notes that such admission is a "special admission status sometimes offered to applicants with a history of drug or alcohol abuse or psychological problems..." The change is immediate and to be applied prospectively.

Wednesday, December 9, 2009

Amendment to cap attorney's fees as part of health care reform defeated

The PopTort is reporting that an amendment to the Senate health care bill that would have imposed national wage caps on fees for attorneys' representing injured patients was defeated by a strong bi-partisan vote of 32-66. As the story in the PopTort states, "[c]apping . . . fees is a major agenda item of the so-called “tort reform” movement. The goal is to keep injured patients from getting decent legal assistance . . ." Go here for the full story.

Mass Sup Ct eases restrictions on judges' ability to explain decisions in public

The Massachusetts Supreme Judicial Court announced a new judicial conduct rule today that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by an ad hoc study committee it appointed in 2008, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics. Go here for the full story and links to the relevant documents.

It's not so bad to violate a rule if you have a good reason for it (part 2)

Last summer I posted a comment with the same heading as this one (here) (hence the "part 2"). In it, I explained my position that it is wrong for a court to apply a rule in a way that suggests that its violation is not so bad because the attorney had a good reason to violate it. I think this approach undermines the reason for the rule in the first place. If you don't like applying the rule, change the rule. But don't say that it is okay to violate the rule if there is a good reason to do it.

Here is another example, reported by the Legal Profession Blog:

An Arizona hearing officer has recommended the censure of an attorney who arranged loans to clients through an arrangement by which the loans were made by another attorney secured by promissory notes. The attorney lent money to the other lawyer from personal accounts when the other lawyer did not have money to fund a loan. The attorney knew that the other attorney made loans through checks written on a lawyer trust account. The hearing officer found that the arrangements violated current client conflicts rules and business transactions with client provisions. There was no harm, the lawyer had acted negligently and the misconduct was motivated by concern for the welfare of clients. He was "very remorseful" and held an erroneous belief that "what he and [the other lawyer] were doing was okay...

There are two things I find troubling here. First, there is the naive (at best) notion that the conduct in this case was merely negligent and, second, is the notion that a violation of a rule is somehow "less bad" if it is done with good intentions, as I stated above.

Judges using Facebook or other "social media"

The Florida Judicial Ethics Advisory Committee has issued an opinion on ethical issues relating to judges' use of on line social networking sites. Interestingly, it holds that a judge can post comments on a social site as long as the publication of such material does not otherwise violate the Code of Judicial Conduct, BUT a judge can not add lawyers who may appear before the judge as "friends" on a social networking site nor permit such lawyers to add the judge as their "friend."

Thanks to the Legal Profession Blog for the information and link.

UPDATE (12/9/09 at 7:32pm): here is a link to a story in the Wall Street Journal Blog on the same subject.

More prosecutorial misconduct

There have been a lot of reports of prosecutorial misconduct this year. Go here so see my posts on this subject. Here is another recent example, as reported by the Legal Profession Blog: The Arizona Supreme Court has adopted the recommendation of a hearing officer of a 30 day suspension and probation of a prosecutor for a wide and persistent array of ethics violations during a trial. The hearing officer had found that the prosecutor had, among other things, argued facts not in evidence, asked improper questions, expressed personal opinions about guilt and otherwise behaved in a manner that should provide a training lesson of how not to conduct a criminal trial. In final argument, he stated to the jury: "Ladies and Gentlemen, you've been presented a case that is as strong a case as a prosecutor can present you in a court of law." In his rebuttal argument, he told the jurors "The law requires that I not prove this case beyond all doubt, but only that you have to feel comfortable in your decision that [the defendant] is guilty."

D.C. considers IOLTA program

The Blog of Legal Times is reporting that the District of Columbia Bar is looking to join the more than 40 state bars around the country that have made participation in a trust program mandatory. Proposed changes to the D.C. Rules of Professional Conduct governing interest on lawyers' trust accounts, or IOLTA, are under review at the D.C. Court of Appeals. Click here for a copy of the D.C. Bar’s proposal, submitted to the court in September. More on the story here.

Supreme Court Sides With Florida Inmate on Ineffective Assistance

On Nov 30, the Supreme Court issued a powerful unsigned "per curiam" opinion agreeing that the ineffective assistance of counsel for Florida death row inmate George Porter Jr. prejudiced the sentence he received after his murder trial in 1988. The Florida Supreme Court and the U.S. Court of Appeals for the 11th Circuit had previously rejected his ineffective assistance claim. The case is Porter v. McCollum and it is available here,

Opinion on duty to disclose information related to identity theft

The judge who ruled that lawyers can't be forced to comply with new federal rules meant to prevent identity theft released his written opinion on Dec. 1. More on the story here. The opinion is available here.

Monday, December 7, 2009

NGOs request disbarment of torture memo lawyers

On Friday, November 27, 2009, Disbar Torture Lawyers, www.disbartorturelawyers.com, a group of NGOs representing over a million members, filed complaints with the Washington, D.C. Board of Professional Responsibility requesting disbarment of Bush Administration attorneys John Yoo, Michael Haynes, and Alberto Gonzales. Go here for more on the story.

New cases on ineffective assistance of counsel

Go here and here for recent posts on ineffective assistance of counsel (and links to some of the cases). Thanks to the Legal Ethics Forum for the links.

Update on the story re deputy to took documents from attorney's file without permission

Go here for the latest update. If you don't know what the story is about, go here and follow the links back to the original story (and video) (here).

Sunday, December 6, 2009

Taking a break from blogging

Loyal followers of this blog may have noticed fewer posts during the past couple of weeks. That's because I have been busy wrapping up the semester (preparing and teaching the last few classes, writing exams, dealing with faculty committee assignments...) and family preparations for the holidays! I am almost done preparing my exams and will have a few days to try to catch up with my blogging before I start grading exams. Once I start grading, though, I will again take a break from blogging for a little while. So, don't worry if you don't see much activity in the coming weeks. I will catch up eventually. Thank you for your support!

Friday, December 4, 2009

Virginia discusses new rule on sexual relations with clients

The Virginia State Bar has proposed an ethics opinion that concludes that lawyers should refrain from having sexual relationships with clients. However, some have criticized it for not going far enough, while others are saying it goes too far. Go here for the full story.

Thanks to the Legal Ethics Forum for the link.

Wednesday, December 2, 2009

Attorney's fees and health care reform

Here is a link to a cloumn from The Modesto Bee (November 29, 2009 edition) discussing how attorney’s fees may play a role in the national health care debate going on in Congress. For more on the story and some comments go here.

Deputy who stole documents from defense attorney goes to jail

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 and here). As you may recall, the deputy was found guilty of contempt for his actions and was ordered to issue a public apology. He refused and has been sentenced to serve some jail time.

The deputy's conduct was outrageous and now comes word that the County Attorney has agreed to appeal the decision of the court and defend the deputy's conduct. Prof. Jonathan Turley criticizes this decision severely here.

For more on the story, go here.

Delay in providing retainer agreement costs firm six figures

Delay in providing clients with a full copy of the applicable retainer agreement for their matter has cost a New Jersey law firm a six-figure sum. Go here for the full story.