Sunday, July 31, 2011

How not to practice law: show up to court drunk, again

The title says it all.  Unfortunately, this is one I have reported on before - at least three times (here, and here, which includes links to a video).

Class Action Claims Online Legal Forms (like "Legal Zoom") Pose Threat To Consumers.

A few days ago, The Wall Street Journal law blog posted (here) that a case I reported about back in February of 2010 (here where you can find a copy of the complaint and more links) is now set for trial on August 22.  The case involves a class action filed in Missouri claiming that, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri. 

This is not a new issue.  In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is here. LegalZoom's response is available here.

How not to practice law: use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"

In a recent decision called Grievance Administrator v. Trott (available here), the State of Michigan Disciplinary Board disbarred an attorney for mishandling client's funds.  Among other things, the attorney used money from his client's trust account to pay personal expenses at stores and to pay for his utility bills. 

It is not unusual for attorneys caught commingling and misappropriating money to claim the misconduct is due to carelessness rather than intent and to claim the problem is in their "poor bookkeeping", which, of course, they promise to improve in the future. 

The court in this case, suggested the attorney had the good sense not to make that stupid claim and added that
"[a]ttempts to blame misuse of client funds on poor bookkeeping practices seldom make any sense. With respect to the handling of trust funds, "poor bookkeeping" is often actually a refusal to assign priority to the lawyer's role as a fiduciary. The public is asked to trust lawyers with their confidences, their liberty, and their fortunes. The public is also asked to trust lawyers as repositories of funds. The duty to keep client and third party funds safe and separate from lawyer funds is a fundamental one."
For more on this case go to the Legal Profession blog here.

Saturday, July 30, 2011

It does not look like there will be changes to Rule 11 after all

The Legal Ethics Forum is reporting that the effort to restore the older, tougher version of Rule 11 I wrote about here has fared well in the House but looks doubtful in the Senate.  Go here to read the comments on the issue by some of the readers of the Forum.

Roger Clemens' lawyers ask for dismissal due to prosecutorial misconduct

A few days ago, I posted (here) that the prosecution in the trial against former baseball pitcher Roger Clemens engaged in misconduct by using certain evidence the judge had excluded.  Now comes news the Clemens' lawyers have asked the court to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished.  Go here for the full story.

Tuesday, July 19, 2011

How not to practice law: represent buyer and seller in a transaction, then represent one of them against the other after transaction is done

Here is a link to a decision from New Jersey imposing a light sanction on an attorney who represented the buyer and seller in the transaction without full disclosure and a written waiver of the conflict and who then represented the seller in litigation brought by the buyer.  This are two obvious violations of the rules it makes me wonder why the court does not challenge the lawyer's competence.  The case is another one of those that can be used to illustrate the difficulty of determining what should be the proper sanction. 

One year suspension for attorney who told applicants that having sex with him would be part of the job

About two years ago I reported that the Illinois Adminstrator has filed a disciplinary complaint against an attorney for, among other things, telling an applicant for a poition as secretary in his law firm (in writing) that in addition to general secretarial work she would also be required to have "sexual interaction with me and my partner, sometimes together sometimes separate."  Go here for the original story, which includes the full text of the ad and more information.

Now comes news that the Illinois disciplinary board has recommended a one-year suspension for the attorney.  You can read the opinion here.  You can read more about the story here and here.

One thing that strikes about the decision is how long it took to decide the case -- almost two years since the filing of the complaint in the fall of 2009 - particularly since it is reported that the attorney did not respond to the proceeding at all! 

Saturday, July 16, 2011

Comment on the report on pro bono by large firms

About two weeks ago I posted a link to a report by the American Lawyer magazine that concluded that major firms contributed significantly fewer hours of pro bono service in 2010 than in the previous two years.  See here.

In response to the report and the media commentary that followed, Esther F. Lardent, president and chief executive officer of the Pro Bono Institute, published an op-ed piece in the National Law Journal in which she argues that we should be optimistic that the policy, personnel and attitudinal changes undertaken during the past decade by large firms when it comes to pro bono provide the infrastructure and support that will keep pro bono work strong and vital at these firms.  You can read the full article here.

How not to practice law (during the Roger Clemens trial): show the jury the evidence the judge had excluded

Almost a year ago, I posted a story in my on-going "how not to practice law" series on a case in which the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning. See here.

Now comes news that the judge presiding over the Roger Clemens trial declared it a mistrial after prosecutors presented evidence the judge had earlier ruled was inadmissible.

For more on the story you can go to the Wall Street Journal law blog, Prof. Jonathan Turley's blog, the blog of the Legal Times and the Legal Ethics Forum.

Thursday, July 14, 2011

West Virginia Adopts Actual Innocence Rule For Criminal Clients Who Sue for Malpractice

Here is the most recent case in a long line of bad cases that hold that a criminal defendant does not have a right to sue his or her attorney for legal malpractice.  In this instance, the West Virginia Supreme Court held that a criminal defendant who, having obtained habeas relief, pled nolo contendere to the criminal charges.  In a dissenting opinion, Justice Ketchum argued that the court's decision is contrary to 148 years of precedent as well as rules of procedure and evidence.  He also argues that the decision "obliterates a criminal plea that served a very useful purpose." You can read the opinion here and the dissent here.

For more recent news on this issue go here and here.

Attorney suspended for having his wife lend money to client; Court finds loans violated rule against financial assistance to clients

In a recent case callled Toledo Bar Ass'n v. Pheils, the Ohio Supreme Court suspended a lawyer who arranged loans from his wife to a client whom the lawyer was representing in a litigation matter.  At the time of the loans, the client was having financial difficulties and wanted to sign a proposed settlement of his lawsuit, but the lawyer wanted to continue negotiating.  The lawyer arranged for his wife to lend the client a total of  $14,500 and as part of the promissory note for one of the loans, the client agreed to assign his rights in the litigation to the lawyer's wife.  The lawyer acted as lawyer for his wife during the negotiations with the client regarding the loans and later he represented his wife in a lawsuit against his former client.

Given these facts, the court concluded that the loans constituted improper financial assistance to the client even though the money came from the lawyer's wife rather than the lawyer himself and that the lawyer had violated the rules regarding conflicts of interest.

As is common in these types of cases, the court found that Even if respondent’s sole intention was to benefit Robinson, that even if the lawyer’s sole intention was to benefit the client, "intention does not excuse his conduct" and that the mere fact that an attorney provides financial assistance to a client is a problem in and of itself because it “gives the attorney too great a financial stake in the litigation.”

Podcast on Lawyer Advertising and Marketing Online

Here is a link to a radio program on lawyer advertising and marketing online.

Sunday, July 10, 2011

How should an ethical prosecutor deal with a high-publicity rape case?

A recent editorial in the National Law Journal asks "How should an ethical prosecutor deal with a high-publicity rape case?" (see here)  My answer is simple: the same way he or she should handle a no publicity one and according to what is expected by the rules of professional conduct. Why should there be any difference?

Court reverses conviction because prosecutor read privileged communication between defendant and his lawyer

In a recent case, Connecticut Supreme Court considered "whether a prosecutor’s intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant."  Finding that the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege, the court reversed the conviction - which was obtained after the lower court had denied a motion to dismiss the charges based on the prosecutor's conduct.  Interestingly, the court held that the conviction should be reversed regardless of whether the prosecutor's conduct was intentional.  The opinion was not unanimous.  You can read the opinion here. You can read the dissenting opinion here.

Thanks to the legal profession blog for the information.

How not to practice law: don't care about the details

The Legal Profession blog is reporting (here) that the California State Bar Court Review Department has suspended an attorney who allowed his office assistant to sign his name to pleadings from July 2005 to February 2007.  The attorney denied misconduct but offered this explanation of the practice: "[i]t's just easier for me to do that. I don't like details. I leave the details to her."  The opinion is available here.

Friday, July 1, 2011

Big firms make profits, pro bono plunges

The Wall Street Journal law blog is reporting on a study by the American Lawyer magazine in its just-released July pro-bono issue that concludes that many lawyers were too busy representing paying clients to counsel non-paying ones. Go here for the story in the WSJ, go here for the story by American Lawyer magazine.

Illinois amends lawyer trust account guidelines

The Supreme Court of Illinois has announced amendments to existing lawyer trust account guidelines. The new amendments to Rule 1.15 of the Illinois Rules of Professional Conduct help clarify the obligations that all lawyers have to manage and protect client funds. Go here for more on the story. Go here to view the new rule changes.

Recap of the Supreme Court cases on lawyering issues

The Legal Ethics Forum has a short summary of the eight lawyering cases decided by the US Supreme Court this past term here (and it also includes a summary of the lawyering cases already on the docket for next term).