Wednesday, August 31, 2011

IL Supreme Court announces decision that illustrates why a statute of repose in legal malpractice cases is a bad idea

Illinois is the only state I know of that has a statute of repose that applies to legal malpractice actions. This means that, as in all statute of repose cases, an injured plaintiff can lose the right to recover against a lawyer before the client finds out he or she has suffered that injury. This, in my humble opinion, is absurd, and what makes it even worse is that the period of time recognized in the statute is only six years. Typically, statutes of repose in other areas of the law are at least ten years - although some have been lowered in response to tort reform efforts.

This summer the Illinois Supreme Court issued an opinion that illustrates everything that is wrong with the Illinois approach to the issue. In this case, the plaintiff, a widow, found out after her husband’s death that, due to the negligence of the defendant attorney, she was not entitled to her house by right of survivorship. She sued the lawyer and the lawyer argued the claim should be dismissed under the statute of repose. The lower court granted the motion and the Supreme Court affirmed.

The Illinois statute of repose states that a claim may not be brought more than six years from the date on which the complained-of act or omission occurred. There is an exception to this, however, where the injury does not occur until the death of the client, in which case suit may be brought within two years of the demise. Here the court held the injury occured when the lawyer was negligent, not at the decedent’s death and held the case had to be dismissed.

Applying a statute of repose in legal malpractice cases is a terrible policy and Justice Freeman wrote a dissenting opinion that does a great job explaining why. First of all, it must be understood that the plaintiff here is not the lawyer’s client but a beneficiary of the lawyer’s work. More importantly, a future beneficiary. The lawyer’s work would not have any effect on the plaintiff at the time the lawyer performed his work negligently but much later in the future when the beneficiary would acquire the right to the benefits supposedly provided by the lawyer’s work. Thus, it is simply absurd to claim that the beneficiary suffered anything at all when the lawyer failed to draft some documents while her husband was alive.

Second, it is illogical to assume that a beneficiary would have to double check - presumably with another lawyer - the accuracy of the lawyer’s work when the lawyer performed it in order to discover the lawyer’s negligence at the time it happened.

Third, given the facts of the particular case, to survive the effect of the statute of repose, the plaintiff would have had to have sued while her husband was still alive, at which time she had not suffered the injury, had no knowledge that she was at risk of suffering an injury and, more importantly, since her husband was still alive, had no right to sue to begin with.

I agree with Justice Freeman when he says the result is absurd and unjust and that what it does is protect negligent lawyers.  You can judge for yourself by reading the opinion here. The case is called Snyder v. Heidelberger.

Defendant who pleads nolo contendere is precluded from suing for legal malpractice

Here is a 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.  I had posted about it in my torts blog this summer but forgot to mention it here so here it is... 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.

Friday, August 26, 2011

How not to practice law: double bill the court!

Adding to our running list of examples on how now to parctice law, here is the story of a Washington attorney who has been suspended from practicing law in the District of Columbia for a year after it was revealed that he double billed D.C. Superior Court for legal services rendered to indigent defendants on 162 occasions!   Go here for the story.  Go here for more "how not to practice law" stories.

Thursday, August 25, 2011

Documentaries -- UPDATED

In my post about the West Memphis Three earlier today I mentioned the documentary "Paradise Lost,"  which I highly recommend.  It was also included in the list of "50 Documentaries to See Before You Die."  This is the title of a series in the Current TV cable channel that has been running this month.  I am a big fan of documentaries and the selection of "the 50" so far has been very good, but I don't think they are going to include all of my favorites.  So here is my list of the best law related documentaries I have seen, in no particular order.  I encourage you to look them up.

Four Little Girls

William Kunstler: Disturbing the Universe

Paradise Lost

Brother's Keeper

Incident at Oglala (here)

Waco: rules of engagement

Cheney’s Law (here)

The Thin Blue Line

The Trials of Henry Kissinger (here)

Terror’s Advocate (here and here)

The U.S. vs. John Lennon

The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers

The Chair

Chicago 10
Now is your turn.  What law related documentaries do you recommend?  There are two more documentaries I would like to mention but I have not seen them yet:  The Trials of Darryl Hunt and Hot Coffee.  They are on my list of movies to see soon...

On the release of the West Memphis Three

In 1993 three eight-year-old boys were found dead in a muddy creek in West Memphis, a small town in eastern Arkansas.  The discovery of their bodies led to hysterical allegations of satanic rituals and eventually resulted in the arrest and trial of three other kids.  Their case became famous in part because of an outstanding documentary called Paradise Lost: The Child Murders at Robin Hood Hills.

One of the kids confessed but then recanted; the others always maintained their innocence.  At their trials very little evidence was brought forward to connect them to the murders but they were all convicted. 

Having served more than 18 years in prison, all three were released last week when, after years of appeals, the state of Arkansas accepted a rare plea by the three men (now in their 30s).  They were sentenced to time served and released immediately.

A lot has been written about this development in the case over the past few days.  You can google "West Memphis Three" for lots of information.  (By the way, did you know "google" is now a verb?)  

Also, here is a link to a podcast  from the Legal Talk Network discussing the case. 

If you have not seen the documentary, you really should.

What constitutes a "misleading" ad?

As you probably know from having studied the Supreme Court cases on advertising of legal services, the state can, without violating the attorney's first amendment rights, discipline attorneys who engage in advertising that is misleading.  Claiming that an advertisement is misleading is, in fact, the easiest way for the state to impose discipline in advertising cases. 

But what exactly constitutes a misleading ad?  That is not such an easy question to answer.  Obviously, you would think it means an ad that gives a wrong impression; but that is subject to so much interpretation that it really does not provide much guidance.

Should an ad in which the lawyer says "I get results!" while pounding on a table be considered misleading because it suggests the lawyer always wins?  How about one that says "we make them pay!" or that "I have been getting victims higher cash awards for years" or something like that?

I don't know.  And now, a case from Indiana should give lawyers reason to worry about exactly what words they use to describe their practice.  Choosing the wrong word can not only make the ad misleading it can be interpreted to be a violation of another rule.

In this case, two attorneys agreed to a stipulated sanction for having published an ad in the phonebook's yellow pages promoting themselves as "Specializing in Bankruptcy Relief."

The objection to the add was based on the fact that "[n]either Respondent has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education."

How is the statement in the ad misleading?

The problem is that, subject to limited exceptions, rules of professional conduct ban lawyers from stating, or implying, that they are "specialists" in any particular field of law.  See for example, Model Rule 7.4(d).  And, as in this case, some courts have found that saying that one specializes in a certain type of practice implies that one has been certified as a specialist in that area.

I am sorry but I think that investing time and money on imposing discipline for the statement in this case is just a waste of resources! To specialize is a verb. I looked it up in the dictionary and it says "to concentrate one's efforts in a special activity, field, or practice."   You don't have to be certified to practice bankruptcy law and if the attorneys' main area of practice is bankruptcy law they, in fact, specialize in bankruptcy relief.  Can't a lawyer advertise that they specialize in a particular area of the law anymore?  How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.

What do you think?  Is advertising that says a lawyer specializes in an area of law (assuming the lawyer does practice mostly in that area) misleading?  Should it subject the lawyer to discipline?

UPDATE:  May 2013:  In a recent case from Louisiana a Hearing Committee has recommended a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases.  See my comment on this new case here.

UPDATE: Oct 2015: In a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize” or have “expertise” are board certified, but the Court found no evidence to support this argument.  Because the rule essentially banned attorneys from making true statements that describe their areas of practice, the judge concluded the rule was unconstitutional under the test used to determine the constitutionality of restrictions on commercial speech under the First Amendment.  Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise.  Go here for more information.

UPDATE: Sept 2016:  Despite the Court's order, the Florida Bar has enacted a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it.  I think the amendment would not pass Constitutional analysis.  You can read the proposed new language and get more information here.

Is this one of your favorite blogs?

The ABA Journal has started its annual search for the 100 best legal blogs.  You can nominate your favorite blogs by filling out a short form here.   I would be honored if you would consider nominating this blog and/or my Torts blog.

I started this blog a few years ago thinking I would use it to keep my students informed of recent news, but I quickly realized a lot more people have been paying attention to it! One of the most rewarding things about blogging is getting unexpected e-mails from time to time from lawyers, judges, professors and other bloggers with comments, suggestions and ideas.  Needless to say, I will continue to do my best to bring you news and commentary and hope you continue to enjoy the blog.

Tuesday, August 23, 2011

Legal Zoom settles claim of unathorized practice of law

The 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 has settled.  The trial had been set to start yesterday but LegalZoom has announced an agreement in principle to settle the lawsuit. LegalZoom says the settlement agreement contains no admission of wrongdoing and lets the company continue offering services to Missouri residents with certain changes.

Go here for my original post on the case where you can find a copy of the complaint and more links.

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 avaliable here. LegalZoom's response to it is available here.

Sources: The Wall Street Journal law blog, AP

Friday, August 19, 2011

Prosecutors respond to Roger Clemens' argument against re-trial

A few weeks ago I reported (here) that the lawyers for Roger Clemens 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.  In response, prosecutors have filed a brief arguing that Clemens is "seeking to gain an unwarranted windfall" from an "inadvertent error."  Go here for the full story.  Go here for a copy of the brief.  The motions will de discussed at a motion hearing scheduled for Sept. 2.

Thursday, August 18, 2011

Prosecutor gets slap on the wrist for violation of duty to disclose information to the defense

The Legal Profession blog is reporting today that the Virginia State bar agreed to accept a prosecutor's agreed disposition (ie, a plea agreement) to get a public reprimand after admitting to having failed to make a timely disclosure to a defendant’s counsel of evidence that could negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.

To this I say: shame on the Virginia State bar.  Given the many recent reports of prosecutorial misconduct around the country, the recent changes to the Model Rules (now adopted in at least 46 states) that impose specific duties on prosecutors and the US Supreme Court's recent decisions related to the misconduct of prosecutors for this exact same conduct, the choice of a reprimand as a sanction is disturbing. It gives the impression the Virginia bar does not really find the conduct was that bad and that it does not care that much prosecutors are violating the rules.

For more on the story go here.

Monday, August 8, 2011

Supreme Court November oral argument schedule

The Supreme Court has issued its schedule for the first oral arguments of the year and there are three cases related to the "law lawyering" including the two very first ones scheduled:

On Monday, Oct 31 the court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444).  Both cases are about claims of ineffective assistance of counsel based on advice to reject a plea offer and either plead guilty or go to trial.

Also, on what seems to be a trend of cases related to prosecutorial misconduct before the Court in the last couple of terms., on Tuesday, Nov. 8, the Court will hear Smith v. Cain (10-8145) which addresses the impact of a prosecutors’ failure to disclose evidence favorable to the accused’s defense on the verdict in a criminal trial.  

As usual, for more details and information on these (and any other Supreme Court case), including links to the briefs, lower court opinions, and other documents, go to the SCOTUS case files page (here).

Thursday, August 4, 2011

Court of Appeals finds no ineffective assistance of counsel even though attorney fell asleep while defendant was under cross-examination -- UPDATED

Yesterday, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination.  The case is called  Muniz v. Smith (although I suspect it should be Muñiz) and it is available here.   The court held that a courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial.  The case has generated a good debate here

UPDATE 8/4/11:  Lowering the Bar has more on the story here.

Wednesday, August 3, 2011

Iowa to consider whether sanctions in discipline matters should be kept confidential

The Wall Street Journal law blog is reporting that at the end of this month, the Iowa Supreme Court will consider a proposal that would allow lawyers who face discipline for stealing from clients and neglecting client matters to prevent their sanctions from being disclosed publicly. In exchange for this confidentiality, though, lawyers would have to agree to cooperate in expediting the suspension of their law licenses.  Go here for the full story.

I have mixed feelings about this.  On the one hand, offering confidentiality will expedite the process and, hopefully, make it more efficient.  That is a good thing.  But on the other hand, secrecy may eliminate, or at least limit, the goal of deterrence.  Also, it limits the amount of information available to the public when searching for representation.

How not to practice law in Australia

Here is a link to an intereting story in the Australian Professional Liability blog about a firm who sued a former client's wife to get her to pay the client's bills and, after obtaining default judgment against her, set out to, literally, take everything she owned.  The wife did not answer the lawsuit because she was unaware the law protected her apparently, and eventually the court ruled in her favor.  Go here for the full story, which does not end well for the lawfirm.

Revisions to the rules proposed in California - Updated

The California State Bar Association has submitted to the Supreme Court 67 proposed new Rules of Professional Conduct.  California is currently the only state whose professional conduct rules are not adapted from the ABA Model Rules, and the new proposals suggest a reorganization and renumbering to align California rules with the Model Rules. The new rules can not take effect unless they are approved by the Supreme Court.  Some of the proposals have been submitted to the court; others will be submitted in the future.  The full text of the proposal is available here.  (Thanks to the Legal Profession Blog for the update.)

UPDATE 8/3/11:  More on the story at the Legal Ethics Forum.