Professor Alberto Bernabe - The University of Illinois-Chicago School of Law
Saturday, January 30, 2010
NJ Supreme Court to decide (again) whether attorney can be sued for malpractice in negotiating a settlement that the client agreed to
This is an interesting question that the court has addressed before, reaching seemingly incompatible results. In Ziegelheim v. Apollo, 128 N.J. 250 (1992), the Court said the "fact that a party received a settlement [in an underlying action] that was 'fair and reasonable' [did] not mean necessarily that the party's attorney was competent or that the party would not have received a more favorable settlement had the party's incompetent attorney been competent…" For this reason, the Court refused to adopt a per se rule barring malpractice actions by clients who later become dissatisfied with their settlements, unless the clients were trying to commit fraud. However, more recently, in Puder v. Buechel, 183 N.J. 428 (2005), the Court held that a litigant who accepted a settlement in an underlying action and who clearly stated on the record that she was satisfied with the outcome was precluded from suing for malpractice.
The current case before the court is Guido v. Duane Morris, and it can have very important consequences for all attorneys in the state.
The statement quoted above from Ziegeineim v. Apollo makes perfect sense to me. The fact that a client accepts a settlement does not preclude the possibility that an attorney was negligent. However, openning the door to possible liability any time a client changes his or her mind after he or she agreed to a settlement proposed by the attorney can make the attorney's practice more difficult and can, ultimately result in fewer settlements since, fearing possible liability, attorneys could become reluctant to recommend settlements. At the very least, it would affect the dynamics of the attorney-client relationship.
Attempting to reach a compromise between the two precedent cases, the court of appeals in Guido concluded that a malpractice claim could be pursued if "particular facts" support a claim of attorney incompetence. It will be very interesting to see what approach the Supreme Court decides to take. Stay tuned. For more on the story go here.
UPDATE - June 11/10 Last week, the New Jersey Supreme Court issued its decision in Guido v. Duane Morris allowing the legal malpractice suit to go forward holding that "the existence of a prior settlement is not a bar to the prosecution of a legal malpractice claim" arising from the settlement. For more on this story go to Law.com.
More on fake blogs and advertising on the internet
Wednesday, January 27, 2010
$5,000 fine for solicitation after airplane crash
TV show review: The Deep End
In answer to the question "what was the most unrealistic part of the show?" one of the associates interviewed said: "I think the most unrealistic part of the show was the casual attitude the one first-year had about having sex with a client and the casual attitude the partner who knew about it. . ." Another said "The most unrealistic part of the show had to be the managing partner telling an associate in his first week to blow off all the ethical rules so that the firm could maintain a big client."
I also liked three of the answers to the question "What advice would you give to characters on the show?" The comments I liked in answer to this question were: "Stop sleeping with clients", "read the ethics code" and "morals and ethics are not the same thing, so stop getting them confused."
Monday, January 25, 2010
Movie review: William Kunstler, Disturbing the Universe
here). I went to see it on Friday and here is my review.
I think the film is excellent. But let's start with the basics. In case you don't know, William Kunstler was one of the most important civil rights lawyers of his generation. He was either an activist or a lawyer with the Freedoom Riders, the protests against the Vietnam war, the American Indian Movement, the Attica prison revolt and others. He represented "the Chicago 8" accused of causing a riot during the Democratic Party Convention in Chicago in 1968 and activists of all types. He also represented common criminals, mobsters and defendants noone else would dare be associated with.
The documentary does an excellent job of providing all that information, but the most important thing about this movie, in my opinion, is that it is not a biography. The movie is really a memoir from the perspective of Kunstler's daughters who struggled to understand him and his passion for his work and his clients. Kunstler was a radical, a lawyer, an activist, a public figure and a celebrity. But he was also a father and a husband. These are a lot of roles to play at the same time, even for a giant like him.
I met Kunstler many years ago when he briefly visited Puerto Rico to represent some Puerto Rican independence activists. I was familiar with his work and had admired it for a long time and was, quite frankly, "star-struck" to make his acquaintance. When he shook my hand and asked me "how are you?" the one thing that immediately struck me was that I realized he actually cared. He actually really wanted to know how I was. He wasn't just looking for me to say "OK", he wanted to know if I really was ok. I am sure I just said "fine" or something like that, but I am also sure that if I had said I was worried about the case (or something else for that matter) he would have spent some time with me talking about it.
There is a little spot in the movie when one of the interviewees says that if someone shouted an insult at Kunstler, he would stop and ask the person why he felt that way and that Kunstler would then spend some time talking about it. I know that is true, because he was that kind of a person. Even if he met you for just a few minutes, those few minutes mattered to him.
And years later, you would realize that they mattered to you too.
That, I think, is also the experience the Kunstler sisters are trying to describe in the movie. As they were growing up, they did not fully realize (or understand) why their father would represent criminals, why people gathered outside their door to yell insults or why they got threats in the mail.
Now, years later, they have put together this movie to answer those questions in a very touching way. Their father did what he did because he cared. He cared about justice. He was not a perfect father or husband or lawyer or person. He made mistakes and bad decisions. But he would not sit idly by while others acted; he acted.
The movie has some great footage both of the social events of which Kunstler was a central figure but also of family life in the Kunstler home. I was touched by the little clips of home movies of him playing with his daughters when they were little and by a famous photo of him working with one of the girls, then just an infant, lying on top of the desk looking at him. To me the movie is not just about lawyering, activism, history and politics; it is also about personal relationships.
In my Professional Responsibility class, I try to spend just a little bit of time teaching my students how important it is to really understand our roles as lawyers in society and how important it is to be able to explain it to others. We could take a lesson from Sarah and Emily Kunstler. In "William Kunstler: Disturbing the Universe" they have given us a very personal memoir that shows why it is so important.
Saturday, January 23, 2010
How not to practice law: sue your own client
Yet, here comes a report from the North Carolina State Bar on a lawyer who was disciplined for filing a claim on behalf on one client against another one of his own clients. Yes, you heard right. This genius sued his own client.
Now, this case does raise an interesting question. What is the best way to deal with this level of misconduct? I mean, what this guy did was clearly incompetent. What should we do about it? Should he be disbarred? ... censured? ... suspended?
I am not sure this is a case where it is in anyone's benefit to impose those kinds of sanctions, do you? I don't think that simply admonishing him is enough, but I also don't think that disbarring him is necessarily warranted (assuming the guy does not have a sustained record of misconduct or incompetence). How would you feel about imposing a suspension during which he would have to go back to law school to take a course on Professional Responsibility?
For a couple more details (there aren't that many) on the story go here.
Solicitation on the internet: using fake blogs to make search engines help lawyers who want to solicit clients
More recently, Turkewitz has written a new series of comments on websites that have created totally fake blogs that are really just a front to divert people to websites of lawfirms that pay for that service. They do it, as Turkewitz explains, "by simply regurgitating local accident or arrest stories and placing a call-to-action link at the bottom. Posts are filled with buzzwords to game Google that, if coupled with the call-to-action for a recent event, places them firmly in the camp of Solicitation . . . " "FindLaw" is the best example and Turkewitz comments on it and how it functions are very informative. His conclusion: "FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole." Two of his recent posts are available here and here (and they both have more links to more posts and information.)
Another aritcle on "the isolation of legal practice and suicide"
Friday, January 22, 2010
High suicide rate within the legal profession
Unfortunately, reports of suicides are becoming more frequent. Almost a year ago, the former chair of Kilpatrick Stockton's Supreme Court and appellate advocacy practice, committed suicide in the firm's Washington, D.C., office after losing his job in a round of layoffs. In December the suicide of a Connecticut real estate lawyer was linked to a drop-off in his practice. And today, Law.com is reporting that a prominent partner in the Houston office of Baker & Hostetler has also committed suicide. Go here for the full story.
John Edwards and professional discipline for dishonesty?
Thursday, January 21, 2010
Documentary film about William Kunstler
Wednesday, January 20, 2010
Sanctions for misconduct in process of "e-discovery"
Monday, January 18, 2010
How not to practice law: show up to court drunk
Here is another addition to our running list of simple rules on how NOT to practice law: show up to court drunk.
The Legal Profession Blog is reporting today that the North Carolina State Bar has suspended a lawyer for one year because the lawyer "appeared in the courthouse intoxicated and was loudly belligerent to courthouse personnel." The order is available here.
For an older example of a similar problem you can watch this series of videos of hearing to determine if lawyer is drunk while attempting to represent a client in court: part 1 (5 minutes), part 2 (9 minutes), part 3 (9 minutes), part 4 (10 minutes)
Here is a sample of some of the items on the "how not to practice law" list so far:
have affair with married woman, then agree to represent her husband in divorce
when interviewing an applicant for a secretary position tell her that having sex with you is part of the job
try to recover expenses from your client after you agreed not to do it
provide the wrong citation to key cases so the judge goes nuts trying to find them
try to blackmail your opponents to get what you want
take more work than you can handle
lie to the disciplinary committee
ask for stolen property as payment for your services
Sunday, January 17, 2010
One question; seven answers
Can prosecutor ask defense attorney to quit representing a client as part of a plea bargain for a different client?
Friday, January 15, 2010
What do you have to do to get disbarred...?
Today I have to add to that criticism. The Review Board of the Illinois ARDC has rejected the Administrator's call for disbarment in the much -publicized case involving a lawyer who lied on his law school application, plagiarized a paper while in law school and altered his transcripts to give himself better grades in 20 courses in order to get a job in a big firm. I blogged about early reports on this case here and here.
In its report, the Review Board rejects the recommendation for disbarment and, instead, proposes an 18 month suspension.
The Legal Profession Blog has more on the story here. The Wall Street Journal Law Blog has more here. Go here for the Board's report.
UPDATE (1/16/10): Law.com has more on this story here.
Thursday, January 14, 2010
Contingency fees might be coming to the UK
However, the attack on the validity of the contingency fee system may now be substantially weakened by the fact a recent report prepared at the request of the English Judiciary has concluded that contingency fees should be allowed in the UK. In what one commentator called "the most controversial of all his recommendations," Lord Justice Jackson's Final Report proposes that lawyers be allowed contingency fees, acknowledging that the "arguments in favour of contingency fees ... outweigh the arguments against."
Go here for the full story by Law.com. Go here for a copy of the report itself. Go here for links to the preliminary drafts of the report.
Lawyers and social media
"When I was first asked if I would agree to provide information to a private business seeking to "teach" lawyers about social media, I responded with how much of their take they planned to donate to charity. If none, then why would they expect my free services so that they could turn a profit? My correspondent came back with a funny response, neither offended by my antagonistic response nor embarrassed by having been outed for her effort to free-ride. . . . So, against my better judgment, I agreed to answer a bunch of questions about lawyers and social media so that this for-profit entity could create a presentation to sell to lawyers as if it was CLE-worthy. It was a few minutes of my time, and more importantly given the other lawyers who were being asked to contribute, I realized that I was likely the only voice that would have anything to say suggesting that social media was not the panacea of wealth, success and prominence. The others were all social media cheerleaders, or made their living off of it.The presentation was completed and it's available . . . It's absolutely awful. It's a lie. It's nonsense. It's total and complete crap."
To read the full story go here. To see the slides of the presentation in question, go here.
Monday, January 11, 2010
Can flat fees be non-refundable?
In any case, a number of jurisdictions are not helping the case for the adoption of flat fees by continuing to blur the distinctions between "flat fees" and "security retainers."
Let me provide some background here. I always thought of flat fees as a predetermined amount charged for the performance of a predetermined task. For example, I could say to the client that I would draft a contract for $500. Whether it took me 4 hours or 4 days, I'd get $500. Presumably, the attorney has figured out the amount to charge based on a number of factors including the going rate for similar work in the market and the amount of time that the lawyer expects the work to take. The risk for the lawyer is that if the work ends up taking up more than that amount of time, the return for the time spent diminishes. (In some cases the miscalculation may turn out to be so off that the lawyer would end up losing money compared to what he or she could have gotten for the work if he or she had charged by the hour.)
The advantage of the flat fee for the client is that the client knows exactly how much the job is going to cost and does not have to worry about having to pay more charges. The client also, presumably, gets a lot of efficiency since the attorney knows that the longer the work takes the less value he or she will end up earning. Finally, the client, again presumably, would be saving some money when compared to what the charges would be if billed by the hour.
Now let me introduce to you the concept of the security retainer: an amount of money that the client gives the attorney up-front from which the attorney deducts the value of services as the services are provided. That amount of money belongs to the client until it is earned and if there is any amount left when the task is finished, the attorney is obligated to returned the unearned portion to the client.
Now the question is, how is a flat fee different from the security retainer? Well, presumably the flat fee is earned when agreed to. The client pays the $500 for the contract, whether it takes the lawyer 4 hours or 4 days to prepare. Assume the lawyer charges $100 an hour. If the client was paying by the hour and the contract took 4 hours to prepare, the client would owe $400. But if the client agreed to a flat fee of $500 and the lawyer was able to finish in 4 hours, the client would have to pay $500. Is that unreasonable? In my opinion, not if there was a chance that the work would take more than 5 hours. That is why the client agreed to the flat fee. The client takes the risk of having to pay $100 over the hourly bill, for the chance that he will save a lot more if the work takes longer. In this particular case, it did not work out for the client, but in most cases it does.
The problem is that, concerned with the possibility that clients who agree to a flat fee may end up paying more than what they would have paid if they had agreed to be billed by the hour, some jurisdictions have held that flat fees are not "earned" until the work is done and that any unearned portion must be returned to the client. This is consistent with the basic principle of what I call "no money for nothing" - which means that a fee is unreasonable if it is an expression of value for services that are not provided. BUT this view also eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing.
The latest example comes from the District of Columbia where the District of Columbia Court of Appeals has held that flat fees do not become attorney property — and therefore must be held in trust — until earned by the attorney. The case is In re Mance, 980 A.2d 1196 (D.C. 2009). Go here for a discussion of this case and examples from other jurisdictions.
I've said it before and I will say it again, it is way too early to pronounce hourly fees dead.
Sunday, January 10, 2010
Another case of prosecutorial misconduct
Is joint representation of criminal defendants per se a conflict of interest?
In this case, the defendant argued that his conviction should be reversed because, among other things, he was denied effective assistance of counsel. The court rejected all the arguments and affirmed the conviction. The argument regarding ineffective assistance of counsel and the court's response present a couple of interesting questions.
In support of his claim of ineffective assistance of counsel, the defendant argued that defense counsel acted under a conflict of interests by representing both the defendant and another co-defendant during pretrial proceedings. Specifically, he argued that "defense counsel’s dual representation impeded the State from making a plea offer that would have benefitted one defendant against the interest of the other."
This is an interesting take on what constitutes a conflict of interest in the context of joint representation of criminal defendants. Let's start with the basics: IF the state had made an offer to one defendant in exchange for that defendant's testimony against the other, the attorney definitely would have been in a conflict of interest situation. However, in this case, the prosecutor did not make an offer, so the defendant's argument is that the prosecutor would have made an offer had it not been for the dual representation by defense counsel. In other words, the argument is that the defendant did not get the benefit of a plea bargain offer by the prosecutor because the prosecutor did not want to create a conflict of interest for defense counsel.
Given that it is not uncommon for prosecutors to make similar offers regardless of the defendants' representation arrangements, I am not sure the argument is particularly strong.
But let's take it at face value for the moment and consider the consequences. If the defendant's position were correct, it would mean that joint representation in criminal cases would, by definition, in all cases, be a conflict of interest that would result in reversal of a conviction. Why? Because if the prosecutor made an offer, there would be a conflict and if the prosecutor did not make an offer, well, there would be a conflcit too!
But wait, there's more! Interestingly, the court did not consider the argument at all. It held that "this issue is not appropriate for resolution in the context of this direct appeal. Rather, this issue should be appropriately raised in a postconviction proceeding in which the defendant could submit affidavits and present extrinsic evidence at a hearing to determine whether a conflict of interests existed in his trial representation."
Here is the interesting question: given that the defendant's argument is based on the fact that the prosecutor did not make him a plea offer, whose affidavit/what evidence would the defendant need to present to prove the existence of the conflict? Wouldn't the defendant need to get the prosecutor to testify that the prosecutor would have made an offer had it not been for the fact that defense counsel was representing more than one defendant? Good luck with that!
Saturday, January 9, 2010
Illinois Appellate Court misses chance to point out prosecutorial misconduct
In this case, the defendant argued he was denied a fair trial and that his conviction should be reversed because, among other reasons, the prosecution made a number of improper comments during opening and closing statements.
One of the statements in question was a remark that the defendant gave another person a car in exchange for the other person's silence about the defendant’s alleged criminal conduct. The prosecutor then added the following: "I have no doubt that [the car] was a gift for his silence." Even though the prosecutor did not present any evidence that the car was given as a gift, he brought it up again in closing saying that the defendant gave the car to the other person as a gift, “maybe sharing in the proceeds, maybe trying to insure their silence."
The comments were improper. When addressing the jury during an opening or closing statement, a prosecutor simply cannot say he or she "has no doubt" about anything. When the prosecutor expressed he had no doubt about the meaning of the defendant’s conduct during the closing statement, the defendant's attorney objected. The trial judge should have granted the objection and admonished the prosecutor or said something to the jury about it.
The prosecutor violated Illinois Rule of PC 3.4(e) which explicitly states that a lawyer shall not ". . . allude to any matter . . . that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. . ."
So what does the court do about all this? Nothing. While recognizing, in the abstract, that a prosecutor’s statement of personal belief is improper, it did not make any mention of the fact that the prosecutor violated the rules of professional conduct. The court also gave the prosecutor a pass on the other statement even though it stated in passing that the prosecutor's claims that the defendant tried to buy the silence of a witness was “unfounded.”
Instead, the court limited itself to solving the argument as it related to the possible reversal of the conviction. Citing precedent cases, the court explained that prosecution comments do not require reversal unless they result in "substantial" prejudice, which has been defined as a substantial impact on the jury's verdict. Since the court did not think the record supported this conclusion, it held the argument was insufficient to support a reversal.
Regardless of whether that is the correct result, I think the court should have admonished the prosecutor and explained the misconduct to make sure other prosecutors will not make the same mistake in the future. The court essentially took a view that can best be described as “no harm – no foul.” Unfortunately, this type of approach does not do much to teach the participants in the criminal justice system the limits of proper advocacy.
Friday, January 8, 2010
Himmel in trouble again
The Legal Profession Blog is reporting today (here) that the Review Board has adopted the recommendation. The opinion is available here.
Another story related to how using social media can cause problems for lawyers and judges
On a related topic, Law.com is reporting today that a judge in Georgia has resigned within days of the publication of information about his Facebook dialog with a woman who was a defendant in a matter pending before his court. As Law.com reports, the judge's "departure from the bench effectively ends inquiries being made in the circuit from the Georgia Judicial Qualifications Commission, which investigates complaints against judges."
"I call it a retirement," the judge reportedly told the Fulton County Daily Report.
Go here for the full story.
Tuesday, January 5, 2010
More on the DOJ plans to prevent prosecutorial misconduct
Here is a link to the DOJ memos.
Also, today the Wall Stree Journal Law Blog published an article that reviews some of the cases that created the need for the DOJ to go back to basics and that puts the DOJ memos in proper context. The article is called "DOJ Offers Guidance to Prevent Prosecutor Errors: But Will it Work?" and it is available here.
Finally, the White Collar Crime Profs Blog has a short comment on the memos here called "New DOJ Discovery Policies Fall Short," in which Prof. Ellen Podgor concludes "[i]t is good to see DOJ trying to do a better job than past administrations, but what really needs to be done is setting forth clearer rules and statutes by independent parties, as opposed to a working group . . . so that our system does "do justice". . .
When is a settlement valid?
Quoting from the NYPI Blog: "At a Brooklyn medical malpractice trial the defendant, at some point, offered 150K to settle. Then, while the jury was deliberating, the plaintiff tried to accept. But a note had been passed to the clerk that the jury had reached a verdict.Did the judge quickly confirm an agreement between the parties and put the settlement on the record? Nope. She did the opposite. And not only did the judge insist on the verdict being taken, but defense counsel remained silent, perhaps smelling a defense verdict after a short deliberation.This exchange ensued in open court between plaintiff's counsel and the judge:
Mr. Jordan: Could I put my request on the record?
The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.
The Court: Because I said what I have to say. Let's proceed
The jury came back with a $1.45M verdict.
The judge then proceeds to toss out the verdict and asserts that the settlement -- the one defense counsel refused to confirm and she refused to put on the record -- controlled."
Is is the attorney-client relationship still an attorney-client relationship if the client takes control of all aspects of lawyering?
What do you have to do to get disbarred...?
Today I have two more stories to add to this topic.
The first one involves a judge in Tennessee who apparently routinely ordered visitors in his courtroom arrested and forced to submit to drug testing when the judge just felt “a hunch.” The judge believes that he can simply arrest on every hunch he has as what he calls the “routine policy of the court.” The Supreme Court’s Judiciary Court censored his conduct and ordered Moore to “never violate a person’s constitutional rights.” ... as if that was just a simple mistake or something trivial... Despite his admission of misconduct, the judge will be allowed to continue to rule in cases despite his total lack of respect for basic constitutional principles. (As an aside, however, one of the people whose rights the judge violated has sued him in civil court.) Go here for more on this story.
The second story is even worse. This case involves an attorney who failed to do the work he was hired to do for a client, then gave the client a forged and falsely notarized document and assured the client (also falsely) that it had been recorded. When all the lies were exposed, the attorney admitted his actions to his firm and attributed them to stress, his use of cocaine and drinking. The law firm fixed the problem at a substantial cost to the firm and suspended the attorney. When the attorney did not report his own misconduct to the authorities, the firm reported him. He responded to the bar complaint by lying about pretty much everything. He lied about his ongoing cocaine abuse and treatment. He had dropped out of a treatment program by falsely claiming that his father had died. He postponed a meeting with Bar Counsel by falsely claiming that his fictitious nephew had been killed in a traffic accident.
So, in light of the undisputed evidence of neglect, forgery, lies to a client, severe harm to the law firm, lies to the disciplinary authorities and lies to the treatment facility, the board found that the attorney "had trouble telling the truth." Wow! Now that's an understatement. Antonio could have figured that out! (For those of you who are not my students: Antonio is my 5 year old son).
The board also found that the attorney's substance abuse did not cause the misconduct and that the attorney had failed to establish any significant support for mitigation
Yet, the Board rejected a recommendation for disbarment in favor of a three year suspension.
I agree with Mike Frisch, of the Legal Profession Blog, when he says "I understand that the proposed sanction is not all that different from a disbarment. However, disbarment is a meaningful sanction that identifies the type of behavior that a self-regulating profession must condemn. If an informed public infers that a big-firm lawyer got special treatment, so much the worse. This is a disbarment case." Go here for more on this story. Go here for a copy of the decision. (Thanks to the ABA Journal.com for this link.)
Thanks to Jonathan Turley for the information on the first case and to the Legal Profession Blog for the information on the second one.
The limits of proper argument; no prosecutorial misconduct for reference to religion
Parties agree to settle and dismiss case re immunity for prosecutorial misconduct pending before Supreme Court
Thanks to the Legal Ethics Forum for the information.
Monday, January 4, 2010
How not to practice law: have affair with married woman, then agree to represent her husband in divorce
Suppose an attorney has an affair with a married woman. Then the husband of the woman hires the attorney to help him get a divorce from her. Can the attorney take the case? Should the lawyer inform the client of the affair before taking the case?
Those are the facts of a case mentioned in the Tennessee Board of Professional Responsibility website. It states (here) that a Memphis lawyer was suspended for one year for engaging in a conflict of interest "by failing to inform his client that he had an affair with the client's wife prior to representing him in a divorce proceeding against the wife."
Thanks for the Legal Profession Blog for the link.
Article on access to representation
Thanks to Andrew Perlman of the Legal Ethics Forum for the information and link.
Are Michigan public defenders violating their clients constitutional rights?
DOJ issues plans to prevent prosecutorial misconduct
Today, the Blog of the Legal Times is reporting that the DOJ has issued three memos—including a detailed guidance memo for all federal prosecutors—that set forth the steps the department has taken and will take to ensure that prosecutors assess and meet their obligations when it comes to sharing information with criminal defense lawyers. Go here for the full story.
For posts on the many cases of prosecutorial misconduct reported in recent months, go to my section on prosecutors.