Proper sanction for refusing to reimburse unearned fee?

The Legal Profession blog is reporting today on a case with an interesting set of facts:  An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case. The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.

Based on these facts, the Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance."  The court's order is available here.

I have no problem with the court's decision.  The conduct was unethical and the refund was provided too late.  My question is whether the sanction was adequate.  I have often posted comments about this.  What makes the conduct worth a one month suspension, as opposed to a two month suspension, for example?

I think a one month suspension is too lenient in this case, but I am not sure what would be appropriate.  What do you think?  I guess the way to find an answer is to research the law of the state to see if there are other similar cases.

I thought prosecutors have an obligation to behave ethically... silly me!

A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence.

I am sorry, but this is so absurd it is painful.  Granted, there is a difference between contempt and disciplinary action, but this "reasoning" is one of the dumbest things I have heard all year.  To say that clearly unethical conduct is not worthy of punishment because the court did not specifically tell the lawyers they needed to be ethical makes a mockery of the whole notion of professional responsibility! 

And people wonder why there is so much prosecutorial misconduct.  Here is the answer: because there is no accountability.  Judges need to understand that to minimize prosecutorial misconduct they need to start imposing liability (whether civil, criminal or disciplinary) for unethical conduct.

For more on this story see The New York Times, Jonathan Turley's blog, the Wall Street Journal's law blog and the Blog of the Legal Times.

Legal Zoom Sues North Carolina Bar - UPDATED

Last August I reported that Legal Zoom.com settled a class action filed in Missouri claiming that it was illegally practicing law in the state of Missouri.  Go here for more details.

Legal Zoom is now back in the news. The Wall Street Journal law blog is reporting that Legal Zoom has filed a lawsuit in North Carolina claiming the State Bar has accused Legal Zoom improperly of engaging in the unauthorized practice of law. The suit asks the court to declare that Legal Zoom is authorized to sell its self-help legal service on the Internet.  Go here for more information.

UPDATE: 11/28/11:  The Lincoln Tribune recently published a story on this case here.
Thanks to the Legal Ethics Forum for this link.

How not to practice law update

Here are the links to the "how not to practice law list" so far.  As you can see, these are examples of incredible but true stories of conduct that is so basic you'd think anyone would know that what they are doing is improper.  Nothing complicated here. In many of the cases, you can say the conduct is simply just plain stupid...  The list would be funny, if it weren't for the fact that it is a serious problem that there are so many lawyers out there getting in trouble for these kinds of things.... Each item is a link to its own post/story.

have sex with client, then charge her for your services

help your boyfriend escape from prison, wait a couple of hours, then post a photo of the two of you on Facebook

on appeal, prepare a lousy brief that does not support your arguments

beat up your client with a baseball bat

steal money from clients, then "in your defense" argue you needed the money

bring your recreational drugs to court, then drop them in front of police officer

post photos of your client's undies on Facebook and make fun of your client and his family in the process

do everything wrong when leaving your firm

video: how not to conduct a hearing (follow up on that story, here)

if you are a judge, preside over the bond hearing of the person accused of a crime against you

if you are a judge, let your clerks decide your cases while you are on vacation

misrepresent your assets in a bankruptcy application (even though you are wearing them in public)  (or hide your assets in a bankruptcy case)

don't pay taxes (particularly if you are a former IRS attorney and a tax lawyer)

don't take depositions seriously

if you are a judge, try to establish inappropriate personal relationship with attorney who appears before you

stop paying child support

use your client's money to pay gambling debts

pull a gun on a process server when he is trying to hand you some papers

lie during the disciplinary process to cover up your mistakes (more recently, here)

try to cheat on the bar exam

host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user

claim you forgot your client was your client in order to avoid correcting your client's perjured testimony during discovery

allow your client to be convicted even though he was in prison at the time of the crime

double bill the court

prepare a will for the client in which the client names you or your wife as the beneficiary

write incomprehensible complaints and briefs

slap the witness in the face during a deposition

bring drugs with you when you visit clients in prison

use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"

represent buyer and seller in a transaction, then represent one of them against the other after transaction is done

show the jury the evidence the judge had excluded

have your spouse lend money to client

don't pay attention to the details

inflate your bills

start to practice law before you are admitted to the bar

abuse your power as a prosecutor by offering leniency in exchange for sex with defendants or their mothers

don't pay your student loans

offer to help law students cheat

claim that everything is confidential

charge a fee for doing nothing

try to help your client by breaking the law

advertise you have "associates" when, in fact, you don't

tell the jury you think your client is guilty

pretend to be a doctor  (more recently here)

try to influence the judge

show up drunk, (same problem, more recently here)

have sex with clients while visiting them in prison (a similar, more recent case here)

sell the defendant's property

be a pimp

charge $3,500 an hour AND be rude to the judge

plagiarize

break the law and obstruct justice

tell your divorce client's wife you want to go out with her

have sex with client's wife

continue to practice during your suspension (same problem, more recently here)

make sure you tell the jury the information the judge had excluded

pay your employees "under the table"

ask client to pay fees with drugs (same, more recent case here)

insult the judge (preferably in writing)

write a bad brief

don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)

if you make a mistake, lie to cover it up

pay your bar dues with a check from your client's account

convince clients to give you title of their house so they avoid foreclosure, then get them evicted

let the client dictate (bad) strategy

ask client to pay fees with sex

park in the handicapped parking spot

lie

get married when you are already married (same problem, more recently here and here)

show up to court drunk

have affair with married woman, then agree to represent her husband in divorce

when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

try to recover expenses from your client after you agreed not to do it

provide the wrong citation to key cases so the judge goes nuts trying to find them

try to blackmail your opponents to get what you want

lie to the judge

take more work than you can handle

lie to the disciplinary committee

forge the judge's signature

ask for stolen property as payment for your services

rob a bank

be rude to the judge's clerk

don't proofread anything before you file it in court

Solicitation in the Penn State sex scandal

Eric Turkewitz comments (and he "names names") on attempts to find and solicit sex abuse victims here.

Be careful what you wish for

Here is an interesting recent case out of the Illinois Appellate Court.  In this case, a criminal defendant appealed his conviction - which was the result of a negotiated plea - arguing that he agreed to the deal based on his lawyer's bad legal advice.  According to the agreement, he received a sentence of 27 years in prison.  Only problem is that, because of the circumstances of the case, the mandatory minimum sentence should have been 25 years more.  So the court of appeals grants his request to set aside the conviction and remands the case to allow the defendant to withdraw the plea "and proceed to trial if he so chooses" only now he is facing, at a minimum, about twice the sentence.  So he got what he wanted but now he is much worse off.

So what happened here?  I don't know why or how the negotiated plea was obtained.  Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law.  And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law?  Or, again, was it a case where the lawyer simply did not know the law?  And then there's defendant's counsel on appeal.  Why would he recommend to appeal a sentence when the result could ONLY be worse for the client?  Did he inform the client of this and let the client decide or did the lawyer not realize it?  The case is called People v McRae and it is available here.

Interestingly, this is not the first time I've heard of something like this.  Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.

So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.

The rest of the decision in McRae is also interesting.  The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail."  In the letter, the defendant essentially confessed to committing the crime.  Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal.  On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it.  Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.

Prosecutor's book contract results in reversal of conviction and more

Model Rule 1.8(d) states 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."  Most jurisdictions probably have a similar rule, the purpose of which, obviously, is to make sure an attorney is not distracted by his or her personal interest in making money off the future book or movie.  It is a pretty simple rule and I don't remember having seen too many cases about it.

In one of those rare cases, the Legal Profession blog is reporting today that the Indiana Court of Appeals has reversed a murder conviction in a case where the prosecutor had entered into a (now cancelled) literary contract for a book.  The case is Camm v Indiana and it is available here.  For more on the case, go to the Legal Profession blog here.

LSC's funding to be cut, probably by 14%

The Chicago Daily Law Bulletin is reporting that the Legal Services Corp. (LSC), which awards grants to legal aid providers throughout the nation, could see its funding slashed by nearly 14 percent in fiscal year 2012.  There are three legal aid providers in Illinois that rely heavily on federal funding to provide legal assistance to those in need: Land of Lincoln Legal Assistance Foundation, Legal Assistance Foundation of Metropolitan Chicago and Prairie State Legal Services Inc.  The cuts in funding will likely result in cuts in staff and fewer services at a time when there are more poor people and more need for those services.

Please consider giving generously to agencies providing legal aid when choosing charities to contribute to this coming holiday season (or at any other time in the future).

UPDATE:  Public Citizen has more information here, including a link to the 2012 budget deal.

Supreme Court to hear case on possible attorney immunity

The Supreme Court has announced its schedule for oral arguments during the month of January and it includes a case on the law of lawyering and torts. The case is called Filarsky v. Delia is about there private lawyers should have the benefit of immunity for the consequences of their conduct while working temporarily for the government. I have mentioned the case before here. For more information and links to all the relevant documents, including the lower court's opinion and the parties' briefs go here.

Yet another case of possible prosecutorial misconduct for not disclosing exculpatory evidence; this one from Texas

I have been following the case before the Supreme Court on prosecutorial misconduct for failing to disclose exculpatory evidence (see here, here and here), and I have commented on the relationship between that case and last year's case Connick v Thompson in which the exonerated man sued the DAs office seeking compensation. (for more on that one type Connick in the "search this blog" box on the right under my photo which will take you a a lot of links on the case.)

Today, in yet another case of a defendant getting exonerated after spending a long time in prison (two decades in this case), the Legal Ethics Forum is reporting that the prosecution is going to have to answer some very hard questions about the prosecutor's fulfillment of his duty to disclose.  For more go here.

Conflict of interest costs law firm $250,000

Last month, the Illinois Appellate Court released an interesting case (from earlier this year) that addresses the consequences of agreeing to represent a client knowing that doing so would constitute a conflict of interest.  As the title of this post suggests, that consequence was that the firm was not allowed to recover a $250,000 fee.  Although there are some inconsistencies within the court’s reasoning, I think it reaches a correct result.  The case is called In re Marriage of Newton and it is available here.

The story behind the case started when a husband consulted a lawyer about hiring the lawyer to represent him in his divorce.  Having decided not to represent the husband, the attorney decided to represent his wife instead, who consulted the lawyer some time later.  After the husband filed a motion to disqualify the wife’s attorney (and his firm), the court held some hearings, the results of which were appealed which led to more hearings and eventually, after about two years of litigation on the question, the lower court not only disqualified the firm but also ordered that it did not have a right to recover any fees.  When the firm protested in court, the judge held the lawyers in contempt.

On appeal from the contempt order, the court believed that to discuss the validity of the contempt order it was also necessary to discuss the validity of the disqualification order and the order barring the recovery of fees.

Before we go any further, it should be noted that the fee issue was based on a specific statute that allows a wife to make her husband pay for her lawyer.  This is an important fact because the firm in question was requesting that the party it supposedly betrayed pay for its fees.  The court did not like that idea.

The court began its analysis by pointing out correctly that, an attorney-client relationship can be created based on the client’s belief that it has been created and does not require a formal handshake, or signing of a contract.  For this reason, given the evidence adopted as true by the lower court, the court concluded that a professional relationship was established with the husband during the initial interview.

This is okay, but it omits the fact that the attorney clearly declined to accept the representation at the end of the interview.  The case is better viewed as an example of the case of a prospective client under Rule 1.18, but since that rule did not exist at the time of the facts of the case, the court analyzes the issue under Rule 1.9 which is about the duty owed to former clients.

If the husband is a former client, then Rule 1.9 prohibits the lawyer (and 1.10 extends that to all other lawyers in his law firm) from taking on the representation of the wife in the divorce.  Knowing this, the firm nevertheless agreed to represent her.  (Note that during the evidentiary hearings the wife testified that the lawyer admitted to her he knew taking her case would create a conflict; but the lawyer denied saying this.  The lawyer also denied having taken any notes during his meeting with the husband, but the husband asserted he did.  The court did not give much credibility to the lawyer.

Thus, assuming as true that the attorney agreed to represent a client with full knowledge that doing so would create a conflict of interest, the court found that the agreement for services was null and void from its inception and thus did not give the lawyers the right to enforce it.  Citing the principle that an attorney may not receive fees from the party he has wronged, the court held the lawyers were not entitled to the fees they claimed to have earned during the two years they represented the wife.

The firm argued that it should have been compensated for the work done for the client up to the time it was disqualified.  The court disagreed, however, finding that the firm had not been litigating in good faith whether its representation of the wife constituted a conflict, because it had already admitted to her that it was.  One thing is to say that the firm did not think there was a conflict and was willing to fight for two years to argue the point, and quite another to say that the firm knew there was a conflict but wanted to fight for two years to be allowed to keep the case anyway.  The court saw the case more like the latter than the former.

For me the key to this case, which the court does not emphasize enough, is the fact that the lawyer/firm actually knew going in he/it was engaging in a conflict of interest.  I have no problem finding that under those circumstances the firm should pay the price.

I do worry, however, that read more generally, the case can penalize a firm that is caught in conflict (not of its own fault).  Take a case where two firms merge in the middle of the litigation creating a conflict in a case, or a case, like the famous Cunningham case used in many casebooks, where an offer to settle the case creates a conflict for the opposing firm.  In such a case, I think it would be fair to allow the conflicted firm to withdraw and allow it to recover fees for the work already performed for the client before it realized it had a conflict including for the period of time during which the firm acted with a conflict but had not realized it yet.

In the end these two possible approaches open the question whether the notion of conflicts of interest should be seen as a sort of “strict liability” case where the fault of the firm does not matter.  According to this approach, if there the firm acted with a conflict, the firm acted wrongly and should not recover its fees. According to the other view, if the firm acted with a conflict, it should be allowed to recover the fees for the services rendered until it is officially disqualified as long as the firm acted without knowledge or fault.

Of course, the question gets more complicated if it can be argued that the firm acted with the conflict because of its own negligence.  I would say that such a case should be resolved just as if the firm acted intentionally (as in the case I am discussing here), because firms have a duty to use reasonable care to avoid conflicts.

One last point: I mentioned at the top that there are some inconsistencies in the analysis of the court and here it is.  Having decided that the attorney created a professional relationship with the husband during an initial interview - even though the interview resulted in the lawyer rejecting the case - the court goes on to cite some older cases that hold that for there to be an attorney-client relationship there has to be a contract and a clear meeting of the minds.  The expressions cited from these cases, clearly contradict the principle upon which the court based its decision.

The result of the case, however, it correct, it seems to me because the key is not whether a relationship was formed during that interview, but the fact that the attorney stated he knew taking on the new case would be a conflict and acted in a way that showed he did not care.

Fortunately, looking forward any future cases with similar facts would be decided using the new rule on prospective clients (Rule 1.18) which should make the analysis a bit more straightforward.

Illinois Appellate Court reverses conviction because of ineffective assistance of counsel based on conflict of interest

Last September, in a short, but well written opinion, the Illinois Appellate Court addressed the issue of whether a conviction should be reversed due to a conflict of interest.  This was the second case in which the court reversed a conviction for ineffective assistance of counsel that month.  The case is called Illinois v Dopson  and it is available here.  My comment on the other case decided that month is here.

In Illinois v Dopson, the attorney for the accused was representing two criminal defendants concurrently in separate cases.  The attorney did not know that one of these defendants was a confidential informant who provided all the information used to arrest the other client.  When the state disclosed to the attorney that one of his clients would be used as a witness against the other client, the attorney ceased to represent the client who was going to be a witness for the state.  He continued to represent the other client, though, and that client was convicted.

On appeal, the client claimed his attorney has provided ineffective assistance of counsel because he continued to represent him while he had a "per se" conflict of interest.  The court agreed.

The court started by pointing out that even though Strickland v Washington usually requires the defendant to show serious attorney error and prejudice, a showing of a per se conflict, by definition, satisfies both prongs of the test.  Operating under a per se conflict is such a serious error there is no need to show prejudice.  Reversal is automatic.

Since Illinois has decided already that prior or contemporary representation of a State's witness constitutes a per se conflict, the Court had no problem finding the case required reversal.

The State claimed there was no conflict of interest because the attorney was not contemporaneously representing the two clients at the time of the defendant’s trial. However, all that means is that the conflict went from being a concurrent conflict to a successive one. Either way, as the court correctly states, “the State’s attempt to narrow the scope of the per se conflict-of-interest rule belies its underlying purpose” which is to make sure an attorney does not find himself in a position where the attorney can’t represent the interests of one client because of his duties to another. As the court states, this “presupposes that defense counsel’s vigorous cross-examination of the State’s witness should be unhindered” by the need to protect a former client’s confidences. At the time of the trial, the attorney was prevented from attempting to elicit information obtained during that prior representation. Whether such information existed, or would have been useful to the defense, is irrelevant.

Finally, although it had stated it was not necessary to establish prejudice, the court points out that the attorney’s cross examination of his former client “was mild, at best.” The attorney did not attack her credibility or point out her possible bias.

Thus, any way you look at it, the court found the circumstances showed a clear conflict of interest which required reversal of the conviction.

Illinois Appellate Court reverses conviction (based on a negotiated plea) because of ineffective assistance of counsel

Convicted defendants often argue ineffective assistance of counsel on appeal, but the argument is not successful most of the time.  Last September, however, the Illinois Appellate Court decide two cases in favor of defendants claiming ineffective assistance of counsel.  I will comment briefly on both of them in separate posts.  Here is the first one.

In this first case, the court set aside a negotiated plea, after finding that the defendant's attorney had rendered ineffective assistance.  In that case, the defendant argued he had agreed to the plea offer based on trial counsel's representation that there were no witnesses available to testify on defendant's behalf, when, in fact, there was one such witness.

The court explains that although to present a witness in a case is a discretionary decision for which usually does not support a claim of ineffective assistance of counsel, in this case the attorney's conduct was not deciding not to use a witness but failing to investigate if there were any witnesses.  The court added that whether defense counsel was ineffective for failure to investigate is generally determined by the value of the evidence that had been available but the attorney failed to find.

Using that standard, the court found that the defendant was able to make a case of ineffective assistance of counsel under the Strickland v. Washington standard (attorney error and prejudice).

The case is called People v Clark and it is available here.

Greetings from Switzerland

I am coming to you "live" today from Lucerne, Switzerland!  I came here to teach a class on International Torts at the University of Lucerne's Law School, with which my law school has an exchange program.  If you are interested in what I will be covering in that course, go here.  The book I put together for the course is about 150 pages long right now, but it will be shorter next summer when the Supreme Court decides some of the cases I have in the book.  For more about that go here, here and here.

Oral argument audio in Smith v Cain is now available

The oral argument in Smith v Cain is available here.

Happy Birthday to the Blog!

Today is this blog's third anniversary!  I started it on November 11, 2008, just a few days after I had started my Torts blog.  Since then I have posted more than 800 posts!  I thank you for your support and hope you will continue to follow the blog in the years to come.

Oral argument recap in Smith v. Cain: it did not go well for the prosecution!

A few days ago I posted a note about a new case before the Supreme Court on prosecutorial misconduct in New Orleans called Smith v. Cain. The oral argument before the Supreme Court was today and apparently it did not go well for the office of the prosecutor.  As reported by Lyle Denniston of the SCOTUS blog, the justices pretty much actually suggested to the attorney representing the DA's office that she should just give up.  Here is an excerpt of Denniston's argument recap:

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain . . .

. . . .   The aggressive exchanges [between her and the justices] were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?” Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument . . . 

It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?”   . . .

At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.

But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand.  . . .

I guess this should not be surprising, given the nature of the allegations and the arguments involved, but it is upsetting that it comes a year too late for John Thompson, who spent years in prison because of prosecutorial misconduct in the same office.  The Supreme Court reversed a verdict in his favor last year.  (Go here and scroll down for a lot of information on that case.)

You can read the full article on the oral argument here.

You can read the transcript of the oral argument here.

UPDATE 11/12/11: The audio of the oral argument in Smith v Cain is now available.  To listen to is now click here here.

UPDATE 1/12/12:  The Supreme Court announced the decision in Smith v Cain today.  Go here for more information.

Supreme Court to hear another case on prosecutorial misconduct from New Orleans

As you probably remember, last year the Supreme Court decided Connick v. Thompson, which has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years," absolving the New Orleans office under DA Harry Connick, Sr. of complaints that it had failed to train prosecutors about their duty to disclose exculpatory evidence.  (If you type "Thompson" or "Connick" on the "search this blog box" on the right side panel (under my name), you will find a number of entries with a lot of information about that case.)

At 11 a.m. this coming Tuesday, the Supreme Court will consider new claims of misconduct by prosecutors in the New Orleans district attorney’s office when it hears oral arguments in a case called Smith v. Cain.

The case involves the same complaint:  that the prosecution team for Orleans Parish follows a continuing policy of refusing to hand over exculpatory evidence to defense lawyers.

Go here for more on the background of the case.

Go here for access to all the relevant documents about the case, including the lower court opinion and the briefs of the parties.

Audio of Supreme Court oral arguments is now available

A few days ago, I wrote about two cases before the Supreme Court on ineffective assistance of counsel.  See here.   Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  You can now listen to the oral arguments here and here.

Article on ethical issues related to the representation of older clients and clients with diminished capacity

The most recent issue of the Illinois Bar Journal has an article on the ethical issues related to the representation of older clients and clients with diminished capacity.  You can read the full article here.

Article on prosecutorial misconduct

The Yale Law Journal online has published an essay on prosecutorial misconduct called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct. You can read it here or here.

Thanks to the Legal Ethics Forum for the link.

Is blogging a form of advertising?

For a number of years, criminal defense attorney Horace Hunter has used a blog as part of his firm's website to write short articles about what he considers to be important issues related to his cases.  Recently, the Ethics Counsel of the state of Virginia contacted him to tell him his blog was considered a form of advertisement and was not in compliance with the state rules.  Eventually, the bar has brought a misconduct charge against Hunter, who argues the blog is news and commentary, and that the bar’s attempt to discipline him, or to force him to add a disclaimer stating the blog is an ad, is a violation of his First Amendment rights.  You can take a look at the blog itself here.

This is a very interesting question and, given the rising number of firms that host blogs, it can have significant implications.

The case has generated a good deal of attention.

Here is an article in the Washington Post discussing the issue.

You can listen to podcasts discussing the case here and here.  The second one of these is an interview with attorney Hunter himself.

Here some very insightful comments from other bloggers:  here and here.

To paraphrase some of these comments, the problem with the case is that the issue should be about the content of the publication not about the type of publication.  The question should not be whether a blog is a form of advertising, but whether what is said in the blog is advertising.  As Carolyn Elefant of MyShingle.com states:

. . . .if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  

I tend to agree with this statement, and it is easy to apply the analysis if the blog only publishes the same type of articles all the time.  But a blog is not just one article.  Each entry is an article in and of itself.  What if some are like ads and some are like law review articles?

Maybe a good compromise would be to require a general disclaimer in the firm's website (which is probably required already anyway), but not in each individual blog entry. 

Discussion on the lawyering cases before the Supreme Court

Yesterday, the Supreme Court Blog hosted a discussion of the two cases on ineffective assistance of counsel the Court heard a few days ago.  You can read all the comments here.

Supreme Court hears cases on ineffective assistance of counsel; transcripts are available

Yesterday, the US Supreme Court heard oral arguments in two cases on the law of lawyering: Lafler v. Cooper and Missouri v. Frye.  Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  Here is a link to an article providing all the background on the cases.

In Lafler, the attorney mistakenly told the defendant that the state could not establish a necessary element of its case.  Based on that advice, the defendant rejected a guilty plea, was convicted at trial, and was eventually sentenced to a much longer prison term.

In Frye, the defendant’s counsel simply failed to inform him that a plea bargain had been offered at all, allegedly leading him to enter a guilty plea on terms far less favorable than he would have received had he agreed to the state’s offer.

The full transcript of the oral argument in Lafler can be found here.  All relevant documents in the case can be found here.

The full transcript of the oral argument in Frye can be found here. All relevant documents in the case can be found here.

The Associated Press reports (here) that the Court “seemed reluctant” to offer a second chance for plea bargaining after sentencing had taken place, while Nina Totenberg of NPR reports (here) that the Justices “seemed a bit more conflicted” in Frye than in Lafler. Adam Liptak also has coverage of the arguments for the New York Times (here).  Thanks to Nabiha Syed of the SCOTUS blog for these links.