Saturday, June 25, 2011

Chemerinsky on access to the judicial system in the US

Constitutional law scholar and UC Irvine School of Law Dean, Erwin Chemerinsky has published an op-ed piece in which he argues that the U.S. Supreme Court's conservative majority is aggressively closing the courthouse doors even when it requires a tortured reading of federal statutes to do so.  You can read the article here.

Wednesday, June 22, 2011

Comments on Turner v Rogers -- UPDATED

Here is a list of links to articles or comments on the Supreme Court's decision in Turner v Rogers (thanks to the SCOTUS blog for the list):

Washington Post
New York Times
Courthouse News Service
The Boston Globe
Concurring Opinions
Constitutional Law Prof Blog

UPDATE 6/22:  Here are a few more links

The Atlantic
Concurring Opinions

Class action alleges public defender caseloads result in violation of right to counsel

The ABA is reporting today that three inmates have filed a class action suit against two cities in Washington state, contending that excessive public defender caseloads in municipal court have deprived them and other defendants of their constitutional right to counsel.  Go here for the story in the Seattle Times.

Tuesday, June 21, 2011

Supreme Court decides Turner v Rogers

Back in March the Supreme Court heard oral arguments on a case called Turner v. Rogers (formerly titled Turner v. Price) which asked the court to decide whether an indigent client has a right to an attorney for civil contempt proceeding that could lead to jail time. I posted a number of links to comments on the oral argument the day after it was heard here

Yesterday, the Court announced its decision holding (on a 5 to 4 vote) that the Fourteenth Amendment’s Due Process Clause does not automatically require the state to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration.   In this case, however, the petitioner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedural safeguards that would reduce the risk of an erroneous deprivation of liberty.  The opinion, as well as the lower court's opinion and the briefs and other relevant documents in the case are available here.

Here is a comment on the case at the Legal Ethics Forum (with links to two others here and here).  The Wall Street Journal law blog has the story here.

I will continue to update this post with links to comments on the case as I see new ones.

How not to practice law (as a judge): order defendants to go to church

Here is an interesting little story about a Mississippi judge who has been reprimanded for ordering defendants to attend church as a condition of bail.  You can read the reprimand here.  More on the story here.  Thanks to the First Amendment Center blog for the link. 

Podcast on right to counsel

Here is a link (also here) to a podcast with Suffolk Law Professor Christopher Dearborn in which he discusses his article on the right to counsel prior to custodial interrogation, You Have the Right to an Attorney, but Not Right Now.

Changes to Federal Rule 11 on sanctions for frivolous lawsuits, again?

The Blog of the Legal Times is reporting today that the U.S. House Judiciary Committee is getting ready to vote on legislation that would restore the system of mandatory sanctions on lawyers who file frivolous lawsuits.  The text of the proposal is available here.  It would make sanctions mandatory once a judge has found a lawsuit to be frivolous under Rule 11 of the rules of civil procedure, and it would remove a 21-day “safe harbor” under which lawyers can now withdraw a lawsuit to avoid threatened sanctions.  As expected, "the proposal has drawn enthusiastic support from business groups who say it would eliminate wasteful litigation, while opponents say it would lead to costly side battles that will consume judges’ time."  Wasn't the approach supported by the bill tried and eventually rejected?  

Thursday, June 16, 2011

NYC bar issues opinion on litigation lending industry -- UPDATED

Back in November of last year and then again in January of this year, I reported on a series of articles on the entities that lend money to litigants in exchange for an assignment of an amount of the potential proceeds of the litigants' legal action.  Then, later that month, I reported that the Illinois legislature rejected a proposal to regulate litigation financing companies.

Now, the New York City Bar has issued a opinion on ethical issues raised by the use of litigation lending services.  The opinion is available here. The New York Law Journal has an article on it here.  Finally, the ABA Journal has a short summary here.

The Wall Street Journal law blog has more on the story here.

Ohio State Univ football scandal includes possible discipline for disclosure of confidential information

The Legal Profession blog is reporting that Ohio Supreme Court's Office of Disciplinary Counsel  has filed a complaint accusing a lawyer of violating his duty of confidentiality by sending three e-mails to former Ohio State Univerisity football coach Jim Tressel.  In the emails, the lawyer told Tressel that certain players had been given free tattoos in exchange for signed memorabilia.  This conduct, in case you don't know, violates NCAA rules.  The reason sending the messages is arguably a violation of the rules is that the lawyer, learned of the situation when the owner of the tattoo parlor came to him for legal advice about a federal-drug investigation against him.  Go here for more details.

Disbarment recommended for one of the "kings of torts"

Back in March I reported (here) on the possible disbarment of attorney Stanley Chesley, a very successful plaintiffs' lawyer who some consider to be the father of the modern-day mass tort.  I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case and it really bothers me to see his career -- during which he helped many people -- go down in flames like this. 

The Wall Street Journal blog is reporting (here) that the Kentucky Bar Association board of governors voted to disbar him for allegedly taking more than his share – $7 million, to be exact – in fees from a 2001 diet drug settlement.  The Lexington Herald-Leader has more details here.

Monday, June 13, 2011

New case on prosecutorial misconduct before the Supreme Court

After the Supreme Court granted review in Connick v Thompson just after it was prevented from deciding Pottawattamie County, Iowa v. Harrington because it settled, I speculated that the Court was looking for a case to criticize what seemed to be widespread prosecutorial misconduct.  Once it decided Connick by essentially avoiding commenting on the notion of prosecutorial misconduct directly, however, I was forced to admit I had been wrong.

This is why I am now dazed and confused by the news that the Court has decided to grant review to a new case of prosecutorial misconduct out of New Orleans.

Reporting for the SCotUS blog, Lyle Denniston writes that "[j]ust weeks after the Supreme Court divided deeply over the tactics of prosecutors in New Orleans, the Justices on Monday decided to take another look, adding a new case claiming repeated violations of those prosecutors’ duty to share information that would help defense lawyers. Public defender lawyers, in the new case, aimed strong complaints at the District Attorney’s office in Orleans Parish, contending that it has “a well-documented history of hiding…from defense counsel” evidence of potential aid to the defense."  Go here to read the full report.  The case will be decided next term.

In Connick, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. So, the question now is whether this new case presents enough evidence to support a "deliberate indifference"?  Have the justices now seen the light and are ready to reverse their view of the conduct of the DA's office? 

I am not going to speculate this time...

For lots of information and links to comments on Connick, go to my sections on Supreme Court or Prosecutors and scroll down.

Sunday, June 12, 2011

Judge reprimanded for trying to force lawyer to recite the pledge of allegiance

Back in December I reported a story (here) about a judge who sent a lawyer to jail for contempt when a lawyer refused to recite the pledge of allegiance in open court after being ordered to do so by the judge.  The Wall Street Journal is reporting that the Mississippi Supreme Court has voted unanimously to discipline the judge.  The court concluded the judge abused his power.  Go here for the full story.

Tuesday, June 7, 2011

Podcast on the ethics of structured settlements

Here is a link (also here) to an episode of the radio show Ringler Radio in which hosts Larry Cohen and Teddy Snyder talk to Seth J. Davis, a private mediator, about the ethics of structured settlements for lawyers and mediators.

Monday, June 6, 2011

UPDATE: Michigan adopts a 30 day waiting period rule

Last month I reported that Michigan adopted a new rule imposing a waiting period on certain types of communications sent to victims of accidents.  See here.  Here is a bit more information on the new rule.

As you probably know, the U.S. Supreme Court confirmed a state's authority to impose a temporary ban on attorneys' direct-mail solicitations to accident victims in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995).  Following that decision, a number of jurisdictions have enacted a waiting period for attorney solicitation after accidents.  Last month, Michigan became the most recent state to do so.

The (5 to 4) decision in Went for it is controversial. Personally, I do not find it convicing at all. It simply does not follow the applicable precedent and doctrine.  Also, while claiming that the challenged rule was needed to advance the right to privacy of the victims, the rule did not prevent defendant's lawyers from invading that privacy.  It only applied to plaintiffs' lawyers. 

This problem has been addressed by some of the jurisdictions that have adopted waiting period rules since then, but not by all.  The newly adopted rule in Michigan was approved on a 4 to 3 vote by the Michigan Supreme Court.  The text of the new rule, which can be found here is not entirely clear on this point.

In one of the dissenting opinions, Justice Markman argues that the rule places small firms at an increasing economic disadvantage to the large law firm in terms of client solicitation.