Thursday, September 30, 2010

ABA Journal seeking nominations for best law blogs

Every year, the ABA publishes a list of the best 100 law blogs and they recently began to seek nominations for this year's list. Go here to nominate all your favorites.

What is the proper level of sanction?

I have often commented on inconsistent sanctions for similar conduct. Here is a link to a comment on this subject by Carolyn Elefant, a solo practitioner who runs a very good blog called "MyShingle". Her post is called "Solo Suspended for Trust Error But Biglaw Unscathed for Botching Capital Appeal" and it is available here. She seems to favor flexibility in sanctioning and that sanctions should be based on case by case evaluation of the circumstances. She discusses a specific case where she believes the authorities should have been lenient even though the conduct involved violations of rules related to handling client's money.

Wednesday, September 29, 2010

Whistleblower protections and in-house counsel

Just a couple of days ago, my class covered issues related to "in-house counsel" including the Balla v Gambro decision denying lawyers the right to sue for wrongful discharge when they are fired for acting according to professional conduct obligations. Today I saw in my print version of the National Law Journal a new article on that very subject. Here is a link to it.

Tuesday, September 28, 2010

Mandatory pro-bono in Mississippi

Three days ago I noted that the Mississippi Supreme Court is considering requiring attorneys to perform 20 hours of pro bono service. Today, is reporting on the story here.'s report adds that under the proposed plan attorneys who do not perform the mandated hours would have to pay a $500 fee. It is not clear whether the fee is to be paid as a form of punishment or as a way to comply with the obligation by providing funding for legal services.

Monday, September 27, 2010

What's with all the lawyer shows on tv?!

I don't watch a lot of TV, but I try to check out shows about lawyers just in case they raise issues I can discuss in class. There have always been shows about lawyers, although many of them were (or are) disguised "detective" stories - more interested in the drama of figuring out "who did it" than on the legal issues that surround the case. But I don't remember so many lawyer shows running at the same time.

Right now there are four new lawyer shows on - three of them at the same time on Wednesday nights. At some point there were promos going around about a fifth one, but I suspect that one may have been dropped since I have not seen or heard anything about it since it was announced back in the summer.

In any case, the new lineup includes Outlaw, about which I have written before and which every report I have read agrees is crap, The Defenders, The Whole Truth and Law and Order LA. These last three run against each other on Wednesday nights.

Here is a quick review of the Defenders by one of the law blogs I read regularly. In a nutshell, this appears to be just another disguised "detective" show (with a comic tone to it, I guess) in which lawyers do the detecting in order to help their clients.

Last Wednesday I opted to watch The Whole Truth instead and here is my quick review: The show tries to be more serious than the others. It follows the work of a district attorney and a defendant's lawyer as they prepare for and try a criminal case. The editing is done so that you get to see the work of each side separately which is interesting, although perhaps not the best narrative model. Given time constraints, the pace of the show is a bit too fast or frantic and the defendant's lawyer (and his firm) follow a familiar Hollywood mold.

What the producers are trying to sell as "different" about this show is that the lawyers never really know "the truth." Now, this is realistic, but unfortunately, the show then feels the need to fill the void for the audience by "solving" the uncertainty at the end. In other words, the audience will know in the end what really happened, even if the characters in the show do not. That's too bad. I think the show would be better if it left everyone with that realistic uncertainty of not really knowing, but I guess I understand this would not make for a popular choice among TV producers who want a happy audience....

Saturday, September 25, 2010

USA Today article on prosecutorial misconduct

USA Today has published a long article on prosecutorial misconduct that concludes that federal prosecutors repeatedly have violated their duties as ministers of justice in courtrooms across the nation, adding that "[t]he abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." The article (which includes lots of links to even more information) is available here.

Can lawyers use social media to gather information about opposing party?

The Legal Ethics Forum is reporting that the New York State Bar Association has issued an Ethics Opinion on investigations through the use of social media. The New York opinion states that, as long as the lawyer does not use deception, a lawyer can typically use any other information that is either publicly available or accessible to anyone who is a member of the network. The opinion can be found here. A similar opinion from the Philadelphia bar can be found here.

Thanks to the Legal Ethics Forum for the information and links. For more information go to the Legal Ethics Forum here and here.

UPDATE Oct 7, 2010: The Ethical Quandary has a comment here.

More on the question of rude behavior

A few days ago, I posted a comment on whether rude behavior constitutes unethical conduct (here), a topic that generated some responses in The Legal Ethics Forum (here).

Adding to the discussion, the Legal Profession blog is reporting that a Colorado Hearing Board has imposed a suspension of a year and a day on an attorney for his pattern of disrespectful and contemptuous behavior in a federal court trial. Among other things, the attorney called another attorney a “fucking weasel” after the attorney reminded the insulting attorney that he should not coach his client during a recess. The attorney also called another attorney a “pinche cabrón” and an “hijo de puta.” (In the footnotes, the board defines these terms as "damned goat, big goat" and "son of a whore," which made me laugh. The word "cabrón" is, in fact, quite insulting to a Spanish speaker, but I can tell you it has nothing to do with a "goat"!! )

It is important to note that both incidents ocurred out of the jury’s presence and involved comments made to another attorney, not to a party as in the case I wrote about a few days ago. Yet, the board found the attorney acted with the intent to disrupt the tribunal in violation of, among others, Rule 8.4.

How not to practice law: ask client to pay fees with drugs

Here is the most recent addition to our running list of examples of how not to practice law. This is one we have seen before (here) and it should be pretty obvious. As usual, the underlying principle is simple: don't ask your client to pay your fees with cocaine!

The Legal Profession blog and are reporting that North Dakota's Supreme Court has disbarred an attorney for asking a client for cocaine.

Aside from the basic principle, though, the issue of drug addiction presents another problem. If the attorney has an addiction, is disbarment the proper sanction? Should the bar have a duty to attempt to help the lawyer seek rehab? Would it be better to suspend the lawyer subject to proof of completion of rehab and then allow the lawyer to be readmitted subject to conditions like periodic testing or something like that? Or is the risk to clients to high?

Does an attorney have a duty to non-clients?

The Court of Appeals of Kentucky has issued an opinion that illustrates one of the few instances where attorneys are sometimes held to owe a duty to a non-client. In that case, the court held that although the plaintiff was not a client, the attorney owed a duty because the plaintiff may have been an intended beneficiary of the lawyers' conduct and the lawyers failed to do a proper title search. The case is called Tipton v. Porter and it is available here.

Meanwhile, a court in New Jersey reached the opposite result in a case called Holvenstot v. Nusbaum (available here).

More and more people qualify for legal aid; is mandatory pro-bono an answer to the crisis?

The Census Bureau's recently released a report that details that nearly 57 million Americans now qualify for civil legal assistance from programs funded by the federal Legal Services Corporation (LSC). That's the number of Americans who, in 2009, were at or below 125 percent of the federal poverty level threshold, an income ceiling of $27,563 a year for a family of four. This is an increase of 3 million from 2008.

Meanwhile, the Wall Street Journal is reporting that the Mississippi Supreme Court is considering a proposed rule to require lawyers in the state to provide at least 20 hours of pro bono work.

But Mississippi lawyers are reportedly not happy that altruism may be forced upon them, the Clarion-Ledger reports.

Read the full sotry (with links to more) in the Wall Street Journal Law Blog. Also, click here to see Above the Law’s take on the proposed rule.

Tuesday, September 21, 2010

Attempt to regulate attorney speech in Utah abandoned

Back in June, the Wall Street Journal reported that a proposal was being discussed in Utah to regulate what lawyers could say about the judicial system. The proposed amendment to the rules would have stated that "[a] lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the judicial system . . ."

As you would expect, there was substantial opposition to the new rule and four days ago The Salt Lake Tribune reported (here) that the Supreme Court’s Advisory Committee on the Rules of Professional Conduct, which made the proposal initially, decided to recommend against adopting the change.

Thanks to Christi Brock for the update.

Sunday, September 19, 2010

When does rude conduct become unethical conduct?

Mike Frisch (Ethics Counsel for Georgetown Law Center) of the Legal Profession Blog has an interesting comment on this as it relates to a case in which the Illinois Administrator filed a complaint alleging, among other things, that an attorney "engaged in misconduct toward an opposing party."

This vague conclusion apparently refers to conduct that was, quite simply, rude. The complaint states that as the attorney and the opposing party left the courtroom, the attorney said to the opposing party "have a nice day, you piece of shit."

This comment was cited as a violation of two ethics rules: (1) using means that have no substantial purpose other than to embarrass, humiliate or burden a third person, and (2) conduct prejudicial to the administration of justice.

Mike Frisch then concludes:

"I predict that the Administrator will lose on both counts. The comment displayed a lack of civility and professionalism, but anyone who cannot handle being called the "s" word cannot function in modern society. I doubt that a finder of fact will find this conduct sufficiently humiliating or burdensome to violate the rule. And prejudicial to the administration of justice? It was not said in open court on the record before a judge."

I am not so sure that I agree. If the comment had been made to opposing cousel, maybe ...., but the comment was made by a male attorney to a female opposing party (a grandmother) who had appeared in court without a lawyer. Also the attorney was representing a man who had violated the terms of a protective order to stay away from the woman and her grandson. The attorney had no business talking to her without counsel present to begin with, let alone to be rude (and possibly intimidating) in that manner. I don't think it is a stretch to say that under the circumstances, the conduct is prejudicial to the administration of justice.

The complaint is available here.

UPDATE: A note about this case has generated a short debate over at the Legal Ethics Forum (here).

UPDATE 10/3/10: The Australian Professional Responsibility blog has posted a comment on the issue here.

Friday, September 17, 2010

European Court Limits Attorney-Client Privilege for In-House Counsel

In a blow to multinational businesses and their in-house counsel, the European Court of Justice on Tuesday held that communications between company management and in-house lawyers are not protected from disclosure or discovery in competition law cases or investigations by the European Commission. Go here for the full story.

Thursday, September 16, 2010

Court reverses conviction because of Judge's comments making fun of attorney is reporting that a unanimous appeals panel in New York reversed a robbery conviction and remanded the case to be tried before a different judge after it found that the trial judge ridiculed a defense attorney and criticized his arguments in front of the jury by using loaded words such as "clown," "silly," "outrageous" and "comedy." This is the fourth time in about a month I have seen news of a conviction getting reversed because of comments by a trial participant. Go here for the full story. For the other two recent cases, go here and here.

How not to practice law: have sex with client's wife

Continuing our on-going list of things you should not do while practicing law, here is a report on two cases in different states reported on the same day last week involving attorneys having sex with their clients' wives.

In one of the cases, the South Carolina Supreme Court found that the circumstances came "dangerously close to an outright conflict of interest" holding that "Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife. Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship."

How this description of the case is not a per se conflict of interest is beyond me! The court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a lawyer from finding himself in a situation where his representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.

It seems obvious to me that the moment the attorney began his relationship with the client's wife, the representation of the client was in danger, and the lawyer was operating under a conflict. And this is just the "legal" analysis. Add to that the notion of the betrayal of the client's trust and it seems to me an anonymous admonition is a bad joke.

Interestingly, the court then goes on to hold that from now on a sexual relationship with the spouse of a current client will be considered per se violation of Rule 1.7 (on conflicts), "as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney."

If that's the case, I don't see why the court could not have held the same thing in this case and imposed a harsher sanction. The court made a point of saying the anonymous lawyer had always been "upstanding member of the bar" up to this point. I wonder who he is? Oh, yeah, I don't know because the order was anonymous! See the order here.

In contrast, in the other case, the Michigan Attorney Discipline Board suspended the attorney for three years while a dissenting opinion argued for disbarment. See the ruling here

In this case, the client was suspicious that his spouse was having an affair and sought his attorney's advice. The attorney, not surprisingly perhaps, did not tell the client it was him (the attorney) who was sleeping with the client's wife.

Eventually, the client discovered the affair and demanded a refund of the fees he had paid to the attorney. The attorney refused, "stating that he had worked on the case and had earned his fees" !! He also earned a suspension.

Thanks to the Legal Profession blog for the information and links.

Podcast on med mal in California touches on effects of regulation of attorney's fees on litigation

Go here for a podcast on California's medical malpractice laws featuring Doug Merritt, a lawyer from San Francisco and Jeffrey S. Mitchell, partner with the firm, Bostwick, Peterson & Mitchell LLP. They discuss the Medical Injury Compensation Reform Act (MICRA) and California’s current political climate, the defense and plaintiff perspective of medical malpractice cases and how structured settlements have impacted clients.

Of interest to readers of this blog is the fact that the beginning of the discussion touches on the possible effects of the regulation of attorney's fees on access to legal representation and the conduct of lawyers in the process of litigation and negotiation.

Reviews of "Outlaw"

The Abnormal Use blog has posted a review of the tv show Outlaw, about which I wrote yesterday. You can read the full review here. It concludes that "the premise of the show is absurd" and that "the absurdity of the premise will likely mean the end of the show." I have to agree. The show is heavy on the rhetoric and weak on logic, acting and storytelling.

You can find more reviews here and here. Not surprisingly, it looks like they are all negative. I wonder if the show will last longer than "The Deep End." Anyone remember that one?!

I will continue to update this post with more links if I see more reviews during the case you are interested.

UPDATE: here is the review from the Blog of the Legal Times. It concludes that "[t]he show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis."

Wednesday, September 15, 2010

New TV "courtroom drama" preview tonight

Back in June, I posted the comment that appears below about three new TV shows expected to start this fall. One of them - Outlaw - previews tonight on NBC and I have seen commercials for one of the others - "The Defenders". But I have not heard anything at all about the third one.

Unfortunately, although as I expected, the (p)reviews for Outlaw are not good. The Washington Post wrote that "the show is so ludicrously dumb that your eyeballs will hurt from rolling so much." See the full review here. It concludes the show "should be dismissed." Go here for more on the story.

The Blog of the Legal Times said it will blog on the show tomorrow.

Here is my post from last June:

With the recent demise of the original "Law & Order" and "Raising the Bar," the major networks are apparently feeling the need to introduce new law related shows. Here are the trailers. One is called "Outlaw" about a Supreme Court Justice who decides to retire and go into private practice. Another is called "The Defenders" and is about a pair of criminal defense lawyers. The third one is "Harry's Law" about people brought together by fate to form a law firm.

I enjoy watching law related shows and movies and reading "legal thrillers" as much as anyone, but I often wish they were much better than what they usually are. I will give all of these a chance but from what I can see in these trailers at least two of them appear to be based on tired old stereotypes: either every client is innocent (Outlaw) or criminal defense lawyers are sleazy (The Defenders), aside from the fact that apparently all lawyers are young, beautiful, fit, sexy and have lots of sex in the office and law libraries. Outlaw also seems to have the stereotypical "team" of characters (common to so many "heist" type movies): the outlaw, the rebel, the intellectual, the smartass, the computer genius, etc. If they add a demolitions expert maybe they could compete with the A-team. The Defenders looks like it might be more of a comedy "detective" show; more about trying to figure out "who did it" than about legal issues.

Harry's Law seems to escape the mold - or at least part of it. This one is produced by David E. Kelley, producer of three relatively successful law related shows. The trailer has some pretty funny lines and Kathy Bates is always entertaining. But, given that I didn't like any of the three previous David E. Kelley shows, I will have to wait and see...

But I am getting way ahead of myself. Let's give them all a chance.... Maybe they will last longer than the last few attempts ... Does anybody remember "Shark" or "Eli Stone"?

Tuesday, September 14, 2010

Most Illegal Immigrants Don’t Get Legal Representation

According to a survey by the Chicago-based National Immigration Justice Center, thousands of people in immigration detention facilities are held without ready access to legal representation because of geographically-isolated facilities, government restrictions on phone contacts, and inadequately funded legal information programs. For the story go to the Wall Street Journal, the Los Angeles Times and the Blog of the Legal Times.

Unauthorized practice of law is a problem in Texas

Officials with the Supreme Court of Texas Unauthorized Practice of Law Committee (UPLC) say complaints about immigration consulting businesses run by nonlawyers are a problem in Texas. Many people who use such services do not speak English. They are unaware that the people who run the businesses may not be attorneys and that their immigration issues might be mishandled by nonlawyers, officials say. Go here for the full story.

Arbitrator rules Toyota former attorney can use arguably privileged documents in litigation against Toyota

The ABA is reporting that an arbitrator has ruled that a former in-house lawyer for Toyota may use documents that otherwise would be protected by attorney-client privilege because he has made a prima facie showing that a crime-fraud exception applies. Go here for the full story. Go here for the text of the arbitrator's ruling.

Sunday, September 12, 2010

On the role of counsel in delinquency proceedings: Guardian or Advocate?

The Chicago Daily Law Bulletin is reporting that in a petition for leave to appeal in a case called In re Rodney S. (No. 110963), a minor is urging the Illinois Supreme Court to reverse his adjudication of delinquency claiming he was deprived the right to counsel when his attorney acted as his attorney and as a guardian ad litem at the same time.

According to the article, the petition cites a 2007 report on delinquency representation in Illinois that concludes that "the type of delinquency representation provided in Illinois courtrooms varies from county to county, with some delinquency attorneys practicing 'best interest' representation, others following the 'express interest' model, and still others acting as both defense attorney and [guardian ad litem]." You can find the article here if you have an online subscription to the Chicago Daily Law Bulletin. Otherwise, look for it in print in the September 10, 2010 issue (Vol.156, Issue 177).

The petition originates from a decision by the 4th District Appellate Court holding, among other things, that the roles of a defense attorney and guardian ad litem are not always in conflict because they both have an obligation "to protect the juvenile's best interest even if those interests do not correspond with the juvenile's wishes."

That statement displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible. I hope the Court takes the case and issues an opinion clarifying the matter.

I also hope that the court takes a careful look at In the Matter of MR, 638 A.2d 1274 (NJ 1994), an opinion of the New Jersey Supreme Court, which is one of the best opinions I have seen on this subject (the reason I assign it to my students when we discuss this issue).

The case provides a very clear explanation of the problem and the proper approach. I hope the Illinois Supreme Court takes a look at it in deciding the case before it. In MR, the New Jersey Supreme Court explains the proper role of an attorney for an incompetent or a minor in the following terms:

As we have recognized in other contexts, the attorney’s role differs from that of a guardian ad litem. . . . A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate . . . and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed. A court-appointed guardian ad litem’s services are to the court ... The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. . . . .

. . . [T]he role of an attorney in abuse or neglect cases and in termination of parental rights cases must be as an advocate for the child. Nothing short of zealous representation is adequate to protect a child’s fundamental legal rights. . . . Requiring attorneys to act as counsel for children in these cases, does not deprive the court of the benefit of the type of assistance afforded by a guardian ad litem. Clearly, as counsel for the child, an attorney could request the additional appointment of a guardian ad litem, and the court sua sponte could do so if deemed necessary. Yet by clarifying an attorney’s role as counsel for the child, substantial evidentiary and procedural dilemmas could be solved. Under the present situation where attorneys assume a hybrid role of attorney/social investigator, questions arise such as the right of the attorney to speak with the parties outside the presence of their counsel; whether communications between a child and the attorney are privileged; and whether an attorney who submits an investigative report is subject to cross-examination. Finally, having attorneys act as counsel for children insures that they are being utilized for a role for which they are trained and suited. . . .

In sum, if it is true that there is confusion (or inconsistency) among Illinois courts on the proper approach to representation of minors in delinquency proceedings, I would fully support a petition to the Supreme Court to clarify the distinction between an attorney and a guardian ad litem.

In delinquency proceedings, the difference between attorneys and GALs is critical. The attorney should follow the client's wishes with the goal of avoiding a conviction or adjudication of delinquency. The guardian, on the other hand, has to fulfill a duty to the court and to act in the best interest of the minor. These two approaches will not necessarily lead in the same direction and should, thus, never be combined or confused. If that is happening now, attorneys are attempting to do the impossible, or, at least, are acting under a clear conflict of interest and the Court should put a stop to it.

According to the petition in In Re Rodney S., the attorney for the minor identified himself as a guardian at litem in court and advocated against the minor's desire to stay at his mother's home. If that is the case, the attorney provided ineffective assistance of counsel. If he was supposed to be advocating for his client, his job was to represent his client, not to advocate against his client. If, on the other hand, he had been specifically appointed to serve as a guardian ad litem by the court, then the minor simply had no legal representation at all in violation of his rights. Any way you look at it, the Court should, therefore, reverse and fix the problem.

You can read the opinion in In re Rodney S. here.  In particular take a look at pages 9 to 11.

UPDATE 9/1/11:  The Court rejected the appeal in In re Rodney S., but a few weeks later granted review in another case that raises the same issue.  That case is called In re Austin M, and it is available here.  The oral argument before the court of appeals in this case is available here.  The oral argument before the Illinois Supreme Court is scheduled for this fall and the case should be decided by the end of this term.

UPDATE 1/12:   The video of the oral argument before the IL Supreme Court is available here.  If you prefer just the audio, go here.

UPDATE 9/1/12:  The Supreme Court ruled an attorney can't serve as advocate and guardian at the same time.  Go here for more information and links.

Saturday, September 11, 2010

Yet another reversal because of prosecutor's comments

Last week a New Jersey appeals court overturned a conviction for attempted murder in part due to the prosecutor's persistent denigration of defense counsel. This is the fourth reversal due to prosecutors' comments I have heard of in about a month. The other three were in Illinois (see here).

In the New Jersey case the prosecutor reportedly disparaged defense counsel and the defendant. The prosecutor also called the defendant a liar, suggested that the defense wasted the jury's valuable time, and closed with a call for the jury to discharge its duty to society. The court concluded that "these cumulative errors by the prosecutor raise grave doubts that defendant received a fair trial." Go here for the full story.

Kansas Supreme Court reverses conviction because of judicial and prosecutorial misconduct is reporting that a Kansas man convicted of child molestation will get a new trial because of misconduct by the judge and the prosecutor. The Kansas Supreme Court ruled on Sept. 3 that they each crossed the line during the trial of a defendant, who in 2008 was sentenced to 25 years to life for fondling an 8-year-old girl. The court found that the judge improperly questioned and encouraged the girl while she was testifying and that the prosecutor violated the defendant's right to remain silent in statements made during closing arguments. Go here for the full story.

Thursday, September 9, 2010

Illinois Ct of Appeals again reverses conviction because of ineffective assistance of counsel

Last week, I reported that the Illinois Court of Appeals recently announced two opinions in which it reversed convictions based on the deficient conduct of the defendants' attorneys. Surprinsingly, the court has reversed a third conviction in an opinion released today. The case is called People v. Sánchez and it is available here.

In this case, the court concluded that the defendant's attorney had failed to investigate the details of the defendant's prior conviction or that counsel was unaware of the law (which clearly holds that the prior conviction was inadmissible). The defendant's lawyer did not object to the admissibility of the conviction which the court found to support a finding of ineffective assistance of counsel. The court acknowledged that the decision whether to object is generally a matter of trial strategy, but it concluded that there was no valid strategic reason for trial counsel's failure to object to the admission of the defendant's prior conviction.

Sunday, September 5, 2010

Arizona lawyer may be in need of an exorcism.... or discipline

To quote Mike Frisch of the Legal Profession blog..."I thought that I had seen just about everything in the area of attorney misconduct, but a hearing officer's report from Arizona proves me wrong..."

Here is the story of a lawyer in Arizona who is facing discipline for her conduct in handling a client's wife's estate. The client's wife committed suicide and the lawyer handled the probate matters. Within days of the death, the lawyer began telling her client that his deceased wife had 'come' to her (the lawyer), that the 'spirit' of the wife was 'inside' her and that she could communicate the wife's thoughts. Before long, the deceased wife made it known that she wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.

Based on these facts, an Arizona Supreme Court hearing officer filed a report on the lawyer's conduct recommending that she be suspended for six months.

Interestingly, though, the report is very careful not to take a position as to an important fact in the case: whether the lawyer was actually possessed by the spirit of the deceased wife. In fact, the report hints at the possibility that it might be true that she was possessed and asserts that the client, the lawyer and other witnesses genuinely believed the lawyer was channeling the deceased wife's thoughts.

This raises an interesting question. If you believe that the lawyer was, in fact, possessed by a spirit, then she was not lying or scheming; she was not in control of her actions. And if that is the case, can you really justify imposing discipline?

Well, you can, but only as to the fact that the attorney tried to deny that she ever claimed to speak for the dead wife. So, she could be disciplined for lying to the disciplinary authorities, but I don't think that is the worst part of her conduct. The clear implication here is that she schemed the whole thing to take advantage of the client. Also, there's the issue of the sexual relationship with the client while representing him. If the court is going to impose discipline for those, I think the court is going to have to make a factual determination as to whether the lawyer was, in fact, possessed or whether she was pretending intentionally or simply delusional.

The hearing officer's report is available here.

UPDATES (October 2010):  Here and here
UPDATE (March 2011): here.

Friday, September 3, 2010

For the third time in less than a month Illinois ct of appeals reverses conviction because of prosecutor's comments

For the third time in about a month the Illinois Court of Appeals has reversed a conviction because of comments made by the prosecutor. The most recent case is called People v Adams and it is available here. For a discussion of the previous two cases go here and here.

In Adams, the prosecutor attempted to argue against the allegation that a police officer planted evidence on the defendant by pointing out that the officer was an 8 ½-year veteran police officer and that it was illogical that he (and another officer) would risk their jobs, their freedom and their reputations over 0.8 grams of cocaine if they had lied about finding the cocaine.

The Court of Appeals found the comments improper concluding that the prosecutor was attempting to bolster the witnesses’ testimony by suggesting that they had more credibility simply because they were police officers. The Court also concluded that the defendant was prejudiced by the comments because the evidence was "closely balanced."

Illinois Ct of Appeals issues two opinions reversing convictions because of ineffective assistance of counsel

Ineffective assistance of counsel is a contention that is often raised by defendants on appeal and in the vast majority of cases it is rejected. Yet, the Illinois Court of Appeals has recently announced two opinions in which it has reversed convictions based on the deficient conduct of the defendants' attorneys.

The first case is called People v Baines and it is available here. It was announced about two weeks ago, although, apparently it is a corrected version of an opinion originally written back in March. If it was announced back in March, I must admit I missed it then, so I am looking at it for the first time.

In Baines, the court concluded that the record was "replete with examples of unusual behavior by defense counsel" and that, thus, it was "evident . . . that there is merit to the defendant’s contention that his representation fell below an acceptable standard."

Among other things, the court found that during his direct examination, it was the defendant who was trying to guide the attorney in how to conduct the questioning in order to elicit relevant information. The court also noted that the attorney elicited from the defendant a damning admission and that "the gravity of the harm caused by this evidence was lost on defense counsel, as he continued to question his own client in a manner which bolstered the State’s case." In the opinion, the court cites the trial transcript extensively and describes the trial in detail to support its conclusion that the attorney's representation was completely inadequate.

In a dissenting opinion, Judge Theis argued that although trial counsel rendered a deficient representation during the course of the trial, the defendant was not prejudiced.

The second case is called People v. Mescall and it is available here. In this case, the court reversed the trial court's judgment dismissing defendant's postconviction petition and remanded for further proceedings on the ground that defendant presented an arguable basis that counsel was ineffective for failing to challenge the trial court's error in imposing mandatory consecutive sentences.

Illinois Court of Appeals rejects argument re conflict of interest in case where attorney represented alleged perpetrator and victim at same time

About a month ago, the Illinois Court of Appeals (Fourth District) issued an opinion in a peculiar case in which a convicted defendant argued he had received ineffective assistance of counsel, among other reasons, because his attorney operated under a conflict of interest.

The underlying incidents upon which the State based its sexual-abuse charges against the defendant in the case and against the other co-defendant included allegations that they engaged in sexual misconduct with each other. In other words, the state's case alleged, at least in part, that the co-defendants were alleged victims of each other.

How could a lawyer represent both co-defendants at the same time? If they were victims of each other, it would be in each person's interest to point the finger at the other, which would make it improper for the attorney to represent them jointly.

Not surprisingly, the co-defendants did not allege either abused the other as part of their defense. And it is precisely based on the fact that the defendants did not point the finger at each other that the court holds now that the attorney's representation did not constitute a conflict.

Am I missing something here? Doesn't this translate into this: the attorney puts himself in a position where he can't make a certain argument because if he does he'd violate his duty to a client - which means he had a conflict - so he doesn't make the argument and then the court says that the fact he did not make the argument shows he did not have a conflict.

I think the lower court should have prevented him from representing the defendants jointly.

The case is called In re Austin and the opinion is available here.

How not to practice law: continue to practice during your suspension

As with pretty much every single other entry in the on-going "how not to practice law" series, all we can say is "duh!"

The Chicago Daily Law Bulletin is reporting today that a disciplinary panel has decided to suspend a Chicago attorney for nine months because he continued to practice law while his license was suspended during 2008.

The lawyer was careful not to go to his office and did not meet with clients, but he hired a young associate who had recently been admitted to the Illinois bar to do the work. The lawyer continued to work "behind the scenes." He contacted the associate and his secretary many times daily, gave instructions, helped with the preparation of the cases, and drafted documents and letters that the associate later signed.

As an aside, did anyone notice that the guy's license was suspended to begin with? I don't know what he did the first time that got him suspended but, let's face it, this is now his second suspension (assuming there are no others). So let's review: The lawyer did something that warranted a suspension. Then he decides to disregard the suspension and continues with his practice, gets caught and admits to the authorities that he had engaged in unauthorized practice of law.... and now he is just suspended again? Why wasn't he disbarred?

And, as a second aside, what about the "young associate"? I am sorry for her, but it should have been pretty obvious to her that she was helping a person practice law in violation of the rules. She should have rejected the job offer. Now she should be disciplined too.

Thursday, September 2, 2010

Justice Sotomayor speech

Here is a video of a recent speech by Justice Sonia Sotomayor at the University of Denver Law School. If, for some reason, you don't see the video just below this line, you can watch it here.

Thanks to the Legal Ethics Forum for the link.