Wednesday, December 29, 2010

Minnesota amends rules to allow flat fees

In the past, I have expressed my disagreement with the approach some jurisdictions take on the issue of flat fees (see here and here). Last October, however, I reported that Tennessee rejected the trend when it amended its rules (here).

Now comes news that the Minnesota Supreme Court also got it right, and has amended its Rules of Professional Conduct to allow, with certain notice requirements, an attorney to treat a flat fee as an attorney's property on receipt.

Thanks to the Legal Profession blog for the update.

USA Today series on prosecutorial misconduct continues

Back in September, USA Today began to publish a series of articles on prosecutorial misconduct (see here). The series is available here. The most recent article is reviewed by the Wall Street Journal here. The more recent article argues that prosecutorial misconduct lets convicted off easy. According to the review, USA Today identified 200 cases since 1997 in which prosecutors supposedly violated laws or ethics rules; in at least 48 of the cases, defendants were convicted of crimes, but courts gave them shorter sentences than they would have otherwise received due to prosecutorial misconduct.

Top Legal Ethics Stories of 2010

The Legal Ethics Forum forum has a list of top legal ethics stories for 2010 and is still asking for more suggestions. Go here for the story.

Monday, December 20, 2010

How not to practice law: show up drunk

Here is an easy multiple choice question: when representing a client, a lawyer should show up (a) sober or (b) drunk. If you picked 'a' .... Ding, ding, ding! We've got a winner. Generally speaking, that is the way to practice law, wouldn't you say?.... But since this is an entry in our on-going how NOT to practice law series, you know what's coming....

An Indiana attorney has been suspended for six months without automatic reinstatement as a result of an incident in which the attorney appeared at the Child Advocacy Center for a police interview with a juvenile client while intoxicated. Go here for the opinion. Go here for more on the story.

Unfortunately, this is not the first time we have seen this type of conduct. Here is a must see video of an attempt by a judge to determine if a lawyer is drunk when he appeared in court to represent a criminal defendant client: part 1 (5 minutes), part 2 (9 minutes), part 3 (9 minutes), part 4 (10 minutes)

How not to practice law: have sex with clients... while visiting them in prison!

The Legal Profession Blog is reporting that the California Supreme Court recently disbarred a lawyer who had sexual relations with two incarcerated clients. Story here.

UPDATE 3/7/2014:  Here is another case involving the same type of conduct.  In this case, the lawyer was caught when he brought an inmate a sex toy and asked her to perform sex acts with it, supposedly in exchange for his legal fees.

Duty to the beneficiary of a will?

The Legal Ethics Forum recently reported on a case out of the California Court of Appeal called Hall v. Kalfayan, in which the court decided that "a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator."

According to the court, "[t]he essence of the claim in the case. . . is that [the attorney] failed to complete the new estate plan for Ms. Turner [the client] and have it executed on her behalf by her conservator before her death, thereby depriving Hall [the plaintiff] of his share of her estate."

The court based its ruling on the fact that "in the absence of an executed (and in this instance, approved) testamentary document naming Hall as a beneficiary, Hall is only a potential beneficiary."

But isn't this a bit of an egg/chicken problem? The plaintiff can't have a cause of action because he is not a beneficiary, but the reason he is not a beneficiary is, arguably, the attorney's negligence. If the lawyer had not been negligent, he would have been a beneficiary...

The court seems to realize this problem and makes a point of stating that the client "had not expressed a desire to have a new will prepared and had only limited conversation with [the lawyer] about the disposition of her estate."

If that is the case, I can understand the court's reasoning. After all, lots of people can speculate that they would have been beneficiaries had the client drafted a will if the client hadn't made up her mind yet. I have no problem with the court's conclusion in a case like that.

But I think it would be wrong to conclude that even if the client had expressed her desire to the lawyer, there is no duty to the beneficiary until the lawyer does the work.

Let's assume that the client clearly expresses to the lawyer his desire to prepare a will in which a certain person would be a beneficiary and it is clear that without the will the person would recover less or nothing at all. Let's also assume that it is clear the will must be prepared quickly because the client is in poor health. Then the lawyer is negligent in doing the work, or waiting too long or whatever. Saying that the beneficiary does not have a cause of action because the will was never prepared allows the negligent lawyer to avoid any consequences for the negligence and results in an injury to the beneficiary. I don't see why not recognize a cause of action under those circumstances. It would serve the two main goals of tort law: providing incentives for avoiding negligent conduct and providing compensation to victims of negligent conduct.

USA Today series on prosecutorial misconduct continues

Back in September, USA Today began to publish a series of articles on prosecutorial misconduct (see here). The series now includes 14 different stories - all available here. The most recent articles are reviewed by the Wall Street Journal here. The more recent stories are all about the fact that federal prosecutors rarely get in trouble for making mistakes, even significant ones.

Tuesday, December 14, 2010

US Supreme Court denies review of decision that struck down NY advertising rules

Yesterday, the United States Supreme Court announced it will not review a Second Circuit decision that struck most of New York’s attorney disciplinary rules regarding advertising (adopted back in 2007). For the latest and helpful links to more information go here.

Wednesday, December 8, 2010

Story on the California report on prosecutorial misconduct

Back in October, I reported on a recent study concluded that California courts discipline fewer than 1% of prosecutors they find committed misconduct. (See here.) About two weeks after that, the California state bar, led by recently-appointed Chief Trial Counsel Jim Towery, announed it was going to investigate 130 prosecutors who were identified in that study. (See here.) The story is now addressed in a short article in the current issue of the ABA Journal, available here.

Judges using Facebook in Ohio

Following on yesterday's post on Facebook, the Board of Commissioners on Grievances & Discipline of Ohio has issued an advisory opinion examining the ethical implications of judges using social media sites like Facebook and Twitter. The opinion advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety. Go here and here for more on the story. The Opinion itself is available here as a word document.

Judge sanctioned for attempting to force lawyer to recite pledge of allegiance

Back in October, I reported that a judge in Mississippi held a lawyer in contempt when the lawyer refused to recite the pledge of allegiance in court. See here. The judge apprentely had the practice of requiring everyone to stand and recite the pledge when the judge entered the courtroom. The Mississippi Commission on Judicial Performance was not impressed by the judge's conduct and it has now recommended a reprimand for the judge. Go here for the full story.

Tuesday, December 7, 2010

Access to Facebook pages

Facebook appears to be in the news almost daily these days and, for a number of different reasons, it is now clear that all lawyers need to educate themselves (and their clients) on how to use it and not to use it. That includes me, but I do know one thing: very little (if anything) is private on the internet.

For more on the issues related to professional conduct and social media go to this section of this blog, particularly to this post with examples of some of the uses of social media that have created problems for lawyers and judges recently.

Now here is the latest, via the Legal Profession Blog:

Last year, the Philadelphia Bar Association issued an opinion (available here) concluding that seeking to surrepticiously “friend” an opposing party or witness on social media (such as Facebook), personally or through an agent would constitute unethical conduct.

However, a Pennsylvania Court of Common Pleas recently held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law.

A New York trial court decision reached the same result by a very similar analysis.