Pro bono conversation questions of the week

The national pro bono celebration conversation ends this week with the following questions:

What should the relationship be between professional development and pro bono services?

Go here to join the conversation.

Firm denied fees for misconduct in bankruptcy case

Freivogel on Conflicts has a new case of interest to bankruptcy lawyers.  In this case, a firm was not allowed to recover fees because of what the judge called the law firm's almost wanton disregard for the disclosure requirements of the Bankruptcy Code and Rules.  The judge found the firm had ample opportunity to cure the problems when facts were discovered or deficiencies were pointed out by the U.S. Trustee.  Because it didn't, the judge concluded that "severe sanctions are warranted" and added that, in light of the firm's "steadfast assertion that it did nothing wrong, I would have serious concerns about the veracity of its disclosure statements in future cases if the firm thought it could get away with a minor slap on the wrist."

The case is called In re Gluth Bros. Const., Inc., Slip Copy, 2011 WL 5023417, Bkrtcy.N.D.Ill.,2011.

ABA Commission has released new paper on alternative litigation finance

At its meeting in Denver, October 14-15, 2011, the ABA Commission on Ethics 20/20 decided to file its Draft White Paper on Alternative Litigation Finance as an Informational Report to the ABA House of Delegates. The Commission seeks to share this Draft White Paper with interested individuals and entities for their consideration prior to the filing deadline of December 2, 2011.  Go here to read the paper.

The Paper's executive summary states as follows:

     The general conclusion of this White Paper is that attorneys must approach transactions involving alternative litigation finance with care, mindful of several core professional obligations. An attorney must always exercise independent professional judgment on behalf of a client, and not be influenced by financial or other considerations. See MODEL RULES OF PROF’L CONDUCT R. 2.1 (2009) . . . Moreover, an attorney must not permit a third party to interfere with the exercise of independent professional judgment. Numerous specific provisions in the Model Rules, including conflicts of interest rules and rules governing third-party payments of fees, reinforce the importance of independent professional judgment. See MODEL RULE 1.7(a)(2) (representation materially limited by lawyer’s responsibilities to a third party or the lawyer’s own interests); MODEL RULE 1.8(e) (with limited exceptions, lawyers may not provide financial assistance to client); MODEL RULE 1.8(f) (lawyer must not accept compensation for representation from third party without informed consent of client and unless it will not interfere with independent professional judgment); MODEL RULE 1.8(i) (lawyers may not acquire proprietary interest in subject matter of representation); MODEL RULE 5.4(c) (lawyer may not permit fee payor to direct or regulate lawyer’s professional judgment).

     In addition, attorneys must be vigilant to prevent disclosure of information protected by Model Rule 1.6(a), and to use reasonable care to safeguard against waiver of the attorney-client privilege. Any infringement on rights that clients would otherwise have, resulting from the presence of alternative litigation finance, requires the informed consent of the client after full, candid disclosure of all of the associated risks and benefits.

     Finally, lawyers must fully explain the terms of funding transactions and ensure that clients are aware of the risks these transactions present. If they are not experienced in dealing with these funding transactions, lawyers who advise clients in connection with alternative litigation finance must become fully informed about the risks and benefits of these transactions, in order to provide competent advice to clients. Because this is a new and highly specialized area of finance, it may be necessary for a lawyer to undertake additional study or associate with experienced counsel when advising clients who are entering into these transactions.

For more information about the work of the Commission go here.

How not to practice law: Continue to practice after you are suspended; get disbarred

Here is a simple principle we have seen before.  If you are suspended from practice, it means you CAN'T practice!!  The Legal Profession blog is reporting that an attorney who had continued to practice after being suspended for six months was disbarred by the New York Appellate Division for the First Judicial Department.  Go here for more details.

Client's attempt to be a smartass during deposition results in judgment against him

The Nevada Supreme Court has upheld a casino’s summary judgment for $2 million against Joe Francis, creator of the soft porn “Girls Gone Wild” franchise for what District Judge Michelle Leavitt called “the most ridiculous exercise of the Fifth Amendment I think I’ve ever seen” during a deposition.  Go here for the details.

This is not the first time Francis acted like this during a deposition.  Here is an excerpt of one of them:
Q. Have you ever been convicted of a felony?
A. I don’t understand what that means.
…
Q. You don’t understand what being a convicted felon is?
A. No. Can you explain it to me?
Q. Did you serve any time in jail?
A. What do you mean “serve”?
…
Q. Do you know what a prisoner is?
A. No.
Q. Do you know what a cellmate is in jail?
A. No.
Q. Do you know what a jail is?
A. Sort of

These deposition antics nearly caused a default judgment against him.

In the most recent case, after the deposition the casino/plaintiff filed a motion for a summary judgment to which Francis replied that he wanted to withdraw his Fifth Amendment answers and continue the deposition. However, the judge refused to reopen discovery and granted summary judgment in favor of the casino. Francis appealed but the Nevada Supreme Court agreed with the District Court’s decision, noting that although answering some of questions at his deposition could have been incriminating, "his refusal to answer nearly every question was unjustifiable.” Francis now has to comply with the judgment which ordered to pay $2 million.  With interest and court costs, could reach $3 million.


Thanks to the Legal Ethics Forum for the link.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How do we ensure high quality pro bono work?  Could well-trained legal assistants and paralegals assume greater responsibility and provide specific forms of legal relief? What matters would be appropriate to specialized form of representation?

Go here to join the conversation.

Prospective waivers

A few days ago, I discussed the use of prospective waivers with my students.  Now, here is a link to an article criticizing their use.  Here is an excerpt that summarizes its position:

What started as a trickle has now become a flood, as major law firms have embraced the practice of inserting into every retainer letter, often buried on page 5 in paragraph 16, a wholesale prospective waiver that would permit the law firm to take on any representation against the new client so long as the matters are not substantially related. No limitation as to matters that are not waivable under Rule 1.7(b)(1). No limitation as to time. No limitation as to matters not litigated. No limitation as to the subject matter of the adverse representation. No limitation as to the identity of the adverse party or parties who would be represented adverse to the client that is granting the prospective waiver. Can such a waiver come close to being given with informed consent? Of course not.

You can read the full article here.  The article is by Larry Fox, a former member of the ABA Standing Committee on Professional Responsibility.  For some comments on the article go to the Legal Ethics Forum, here.

Thanks to the LEF for the link to the article.

Illinois Lawyer Now invites you to celebrate Pro Bono week

Here is a link to a short article on Illinois Lawyer Now inviting you to join the celebration of National Pro Bono Week by Hon. Barbara Crowder.  It starts:  "Do you pro bono? If so, show you are “Pro Bono Proud” during National Pro Bono Week by attending a celebratory event. If not, why not? More opportunities abound to find a pro bono project that meets your time and abilities than ever before. And even more ways to pro bono may be coming to a circuit near you."  Go here to read the full article, and do join the National Pro Bono week activitites.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How can we better use technology? What kinds of information could/should we disseminate, and how?  How do we serve the hard to reach geographical communities?

Go here to join the conversation.

Internship opportunity for students

The Ethics and Professionalism Committee of the ABA Section on Litigation is seeking an unpaid student intern to assist its web editors. The intern will write weekly short articles (300-500 words) discussing recent ethics opinions, rule changes, or anything else relevant to ethics and professionalism as it relates to the practice of law. The intern's articles will be edited and then published online under the intern's name, which will allow him or her to accumulate an online writing portfolio accessible by search engines.

Law students interested in legal ethics are strongly encouraged to apply. To apply, please e-mail Josh Camson (josh@joshcamson.com) web editor for the Ethics and Professionalism Committee with resume, a cover letter, and a brief writing sample (no more than two pages).

Former Texas prosecutor, now a judge, accused of withholding exculpatory evidence.

A former Texas prosecutor, now a sitting judge, has been accused of withholding exculpatory evidence in the prosecution of an Austin-area man who spent 25 years in prison for a murder he didn't commit.  Go here for the details.

Access to clients to film documentary while case is ongoing

Friend of the blog Alan Crede, of the Boston Personal Injury Lawyer Blog, has posted a very interesting comment on the very nature of our civil justice system, particularly on the fact that the system depends on the evaluation of evidence that is available to the jury while there may be other evidence that the jury never gets to see.  You can read his comment here.

As every lawyer and law student knows, our judicial system is not based on the search for the objective truth of the facts at issue but on the concern over protecting the due process of the process itself.  That is the nature of the adversary system.  The rules of evidence allow for the exclusion of evidence that might be relevant because the policies upon which those rules are based are more important to us than the possible benefit we'd get from the admissibility of that evidence.  This is obviously true in criminal cases, but it is not less true in civil cases.

In his comment, Alan wonders about a number of things including the fact that sometimes the most important evidence appears to be the evidence that is not available to the jury.  Most of the time, we don't realize this because in most cases that evidence is, simply, never disclosed.  But sometimes the general public gets to see evidence (through the media, for example) that the jury does not get to see.  And in many of those cases, the impression the public gets is different from that reflected by the jury's decision.

Some see this as a bad thing; others as a good thing.  It depends on what you think of the jury system and the policy behind the rules of evidence to begin with.  In fact, it depends on whether you believe the adversary system of judicial decision-making (at the trial level, at least) is a good idea.

Alan concludes that it is a mistake to overrate the capacities of our judiciary.  He warns that lawyers sometimes are blind to the system's faults and limitations because of a belief that the adversary system is "the greatest engine for the search for truth."  And when that happens "we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom."

All that aside, Alan asked me to comment on a slightly different aspect of the issue.

His comment was prompted by the documentary "Paradise Lost" about the "West Memphis Three" case during the filming of which the attorneys for the defendants allowed the filmmakers to have access to some of their conversations with their clients, and to interview the clients while the case was still ongoing.  Alan wants to know my take on the ethics of the defense team's allowing such unrestricted behind-the-scenes access.

There are several issues that come to mind. First, there is the issue of whether the lawyers were trying to "try the case in the media" rather than in the courtroom.  I don't think so, simply becasue the the documentary was not going to be ready before the end of the case.  The footage would only become available until after the case was over.  However, it can be argued that the lawyers were trying to build a record that could later be used to support an appeal.  That is possible, but it is not different from many other cases which generated documentaries - often to support the defense.

I think the more interesting question is whether it is improper to allow the filmmakers to follow the lawyers and clients as they prepared for trial not knowing in advance what was going to be shown in the final version of the documentary.  As long as the clients gave informed consent, I see that as a tactical decision that may or may not turn out to be a good decision down the line.  It is pretty risky, but I guess the lawyers felt strong enough something positive would come out of it.  The one thing the lawyers had to be careful about was disclosing confidential information "on the air" that they would not want broadcast later.

Lastly, of course, I can only assume the lawyers in this case did not have an agreement with the filmmakers to get a media deal since Rule 1.8(d) (some version of which has been adopted in most, if not all, states) says that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."

How not to practice law: start a fist fight during a deposition

Okay, maybe it wasn't a fist fight but still...  The South Carolina Supreme Court has suspended a lawyer for 90 days for slapping a witness before the start of a deposition. The Legal Profession blog summarizes the facts as follows:

[The lawyer-respondent represented the plaintiff in a civil suit and was set to begin taking the deposition of one of the defendants.]  Respondent asked if anyone wanted to take a break.  The defendant, who was seated across the table from respondent, said something to the effect of "No, let's get this crap over with."  Respondent then stood up and pointed at the defendant's face and warned him not to speak to him in that manner.  The defendant stood up and told respondent not to point his finger at him.  Respondent then slapped the defendant in the face.

The lawyer pled "no contest" to a charge of simple assault and battery and and was sentenced to payment of a fine.  The opinion is available here.

This story reminded me of this famous video:

Pro bono opportunities in Chicago

In conjunction with the national pro bono week activities, between Oct. 24 to 28, interested attorneys can attend the Pro Bono and Community Service Fair to learn about pro bono opportunities in Chicago.  There will be free MCLE courses to learn how to do mortgage foreclosure mediation or help those who have been wrongly accused of child abuse or neglect, you can attend the "Breakfast With Judges" to discuss pro bono efforts in our community or participate in a unique workshops titled "Walk a Month in My Shoes: A Poverty Simulation." To get details on dates, times and places, visit the Chicago Bar Association pro bono week website.

John Edwards' Lawyer Faces Conflicts Question

The Blog of the Legal Times has an interesting news story about Abbe Lowell, the attorney for John Edwards.  Edwards is facing a six-count federal indictment in which Justice Department prosecutors say that he received more than $900,000 in illegal campaign contributions.  While the case was under investigation, Lowell was representing (among others) Edwards’ former campaign pollster, Harrison Hickman. But two months ago, after it became clear the case is likely headed to trial, Edwards hired Lowell as his lead attorney. That creates potential conflicts of interest because prosecutors may call Hickman as a witness, according to a new court motion from prosecutors asking for a hearing.  Reportedly, however, all the parties involved have stated hey will consent to the representation so the conflicts may not be a problem. Go here for more details.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What systemic issues do you see in the delivery of legal services and equal access to justice?   How does pro bono fit (or not) into the big picture? The overwhelming majority of low income people appear pro se in court. What should the role of pro bono assistance be for these clients?

Go here to join the conversation.

Florida Court Strikes Down Limits on Lawyer Advertising

On Friday, a federal judge ruled that Florida ad restrictions violate lawyers’ First Amendment rights.  Go here for more information.

Is the federal government trying to make it illegal to practice law?

Here is a link to a short post on the Legal Ethics Forum discussing a bill recently approved by the House Judiciary Committee that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act -- even if the planned activities are legal in the countries where they're carried out.

Suppose a client says to a lawyer, "I'm traveling to Amsterdam and would like to smoke some hash while I'm there. Is that lawful?"  Would answering the question, and providing legal advice, constitute a crime?

Read the Legal Ethics Forum comment here which includes a link to an article in the Huffington Post discussing the issue in more detail.

Today in baseball - and music - history

This post has nothing to do with torts or professional responsibility, but it's my blog, so there!

Did you know today is the anniversary of the very first time a singer sang a personalized version of the national anthem before a sporting event?

On October 7, 1968 Puerto Rican singer/guitarist Jose Feliciano stunned the crowd at Tiger Stadium in Detroit when he sang a non traditional rendition of the national anthem before Game 5 of the World Series between Detroit and St. Louis.  The reaction was not good.  He was booed, criticized, and many radio stations stopped playing his music.  Interestingly, the Tigers won the game and the final two to win the series in seven games.

I am not a big fan of the way many - indeed, most - singers try to change the national anthem these days, but there are a few renditions that I like.  Feliciano's is one of them.  Another one is Marvin Gaye's version before the NBA All-Star game in 1983.

Ironically, Marvin Gaye sang the national anthem in Detroit the day before Feliciano did.  Supposedly, Ernie Harwell specifically asked him to do a traditional rendition of the anthem.  I guess he expected Gaye to try something different.  I don't know if he told Feliciano the same thing...

Also ironically, after Harwell passed away last year, the Tigers had Feliciano sing the exact same version of the anthem before a game to honor his memory.

You can listen to Jose Feliciano's 1968 national anthem here.

You can listen to Marvin Gaye's version in 1968 here and his 1983 version here.

DC to consider rule to require disclosure of information to remedy wrongful conviction

The The District of Columbia Rules of Professional Conduct Review Committee is proposing changes in the D.C. ethics rules.  A short summary of all the proposed changes is available here.  A detailed report including the text of the proposed rules and the committee's report is available here.

The most interesting one is the proposal to adopt a new Rule 8.6 "to require all lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to a court, the convicted person’s counsel, and the convicted person, in the absence of other confidentiality obligations of the lawyer."

As the rule states, however, it does not require disclosure of confidential information.  Thus, this rule would not change the result in a situation like Alton Logan's case.

Given that courts often use the text of the rules to express duties in tort law, one - perhaps unintended - consequence of approving this rule will be to open the door to civil liablity for not disclosing the information. And from there, it might not be long before courts begin to consider extending such a duty to cover other information a la Tarasoff v. Regents of the Univ of California. as in Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979).

Shopping for lawyers by price; good idea?

Here is a comment by popular solo practitioner blog "My Shingle" on a new website modeled after travel sites that allows consumers to comparison shop for lawyers based on price in the same way that they would for hotel rooms or airfare.

Bottom line?  My Shingle concludes that the website "confuses consumers", "creates traps for unwary lawyers and "opens up a Pandora’s box of ethics issues."  In the end, "for a site that purports to promote transparency on lawyer fees, AttorneyFee.com doesn’t just muddy the water for consumers; it converts them into a veritable toxic waste site."

Read the full comment here.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What is the best way to recruit and utilize corporate in house counsel?  Government attorneys? What is the role of rewards/awards in generating pro bono participation? What evidence do you have of their efficacy?  What are your best practices in inspiring and rewarding pro bono participation?

Go here to join the conversation.