Friday, December 30, 2011

How not to (start the) practice (of) law: cheat on the bar exam

The title says it all.  If you want to be admitted to the practice of law, it is really not a good idea to try to cheat during the bar exam. ..just sayin'... 

The Legal Profession blog is reporting today on a case in which the State Board of Law Examiners found that the petitioner was trying to cheat during the bar exam.  The Appellate Division of New York's Supreme Court
 affirmed the decision nullifying the results of the exam.  Go here for a copy of the court's order.

Wednesday, December 28, 2011

More on the controversy over Stephen Glass' request for admission to the bar - UPDATED (Dec. 27)

A few days ago I wrote about the controversy over the request for admission to the bar by Stephen Glass, a former journalist who was exposed for having falsified many of the stories he wrote for important national magazines over the years - including some he wrote while attending law school.  See my original comment on the case here.    Reuters has a new story on the case here.

UPDATE 12-10-11: Stephen Diamond has posted a comment called "Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment," here.

UPDATE #2:  12/27/11:  (by the Legal Ethics Forum):   An op-ed published by the New York Times (here) argues in favor of admission to the bar.  The Washington Post has more on the story here.  Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case.  The article was later turned into a film of the same name.

Top stories of the year

As usual, around this time of the year we start seeing "top ten lists" for everything.  Go here for the Top Legal Ethics Stories of the Year list as compiled by the Legal Ethics Forum.

How not to practice law: host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user

I am constantly amazed at how people post stuff on the internet forgetting that others have access to what they post...  I like to tell my students jokingly (although it is not entirely a joke) that "facebook makes you dumb."  Here is another example:  In a recent case the South Carolina Supreme Court disbarred an attorney who did not reply to a number of alleged ethics violations, among them a charge that he maintained a webpage with the name of his law firm on that contained profanity and nudity along statements that suggested he had been using drugs during the week prior to posting the comment.

Listen people:  if you post something on the internet, others will read it.  It can and will be used against you. 

Friday, December 16, 2011

The New Jersey approach to sanctions

As Mike Frisch of the Legal Profession Blog recently stated, "there was a time when New Jersey had the reputation for being tough on attorney misconduct. That time has obviously long since passed."  His comment was prompted by a couple of new cases that display what he called "the forgiving nature of attorney discipline in New Jersey."

In the first case, an attorney had been suspended for three months but failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension but the Disciplinary Review Board concluded that no further suspension was appropriate.

In the second case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation. As a result, while claiming that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated," the imposed sanction was merely a reprimand.

Permanent ban from the SEC as a sanction

Breaking from tradition, the Securities and Exchange Commission sought sanctions in a recent case for ethics violations that were not tethered to violations of securities law.  In fact, the Commission imposed a lifetime ban on a commercial litigator whom the agency accused of violating attorney ethics rules.  Today, the BLT is reporting that the Court of Appeals for the DC Circuit unanimously upheld the commission's sanction.  Go here for more on the story.  Go here for the decision of the court.

Proper sanctions? You be the judge

Here is a story from the Pennsylvania Disciplinary Board (via the Legal Profession blog).

An attorney was retained to pursue claims for injuries sustained by a passenger in a plane that collided with a truck on the runway. In the suit, he asserted that the client's injuries were solely caused by the accident. The client so testified at her deposition. The client also testified that she had had no contact with the attorney prior to the plane accident.

However, this was false.  The client had been in a car accident two months before and had retained the attorney to pursue the claim.

The attorney failed to correct her false deposition testimony, contending that he did not "contemporaneously realize" that the testimony was false.

I am sorry, what?  So, at the time of the deposition the attorney had forgotten that the client was his client in another on going case?  Or was it that the attorney did not realize the client lied when she said she had not contacted the attorney?  Since he must have known she had contacted him, I am not sure it is difficult to see the statement was incorrect.

What sanctions would you impose? The Board imposed a public censure.  The opinion is available here.

Wednesday, December 14, 2011

Malpractice on 34th Street

Abnormal Use has an interesting take on the movie Miracle on 34th Street, a Christmas classic.  As you may recall, the movie's climax is a trial scene.  Abnormal Use reviews the film and discusses how inaccurate the courtroom scenes are here.

Conviction reversed because of improper argument by prosecutor

A conviction of a criminal defendant for the murder of his wife was reversed by the Mississippi Supreme Court because, as part of the closing argument, the prosecutor repeatedly asked the jurors how they would feel with a loaded shotgun pointed at their face.

Thanks to the Legal Profession blog for the link.

Monday, December 12, 2011

Spectacular incompetence

I once used the title "incomparable incompetence" to describe the conduct of attorneys and the judge in a particular case (see here).  Then a similar case came along and I again questioned the competence of those involved (here).  Now a judge has beaten me to the punch, calling the conduct of a criminal defense lawyer and the prosecutor in the case "spectacularly incompetent" according to the Houston Chronicle (here).

In this new case, the defendant was convicted and sentenced to life in prison for armed robbery.  He insisted he was innocent, but could not remember exactly where he was on the day of the robbery.  The fact is he had a pretty good alibi, he just did not remember it.  He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.

Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges.  In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."

The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."

Interestingly, it seems the attorney's conduct did not result in injuries to the client, though.  True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges.  In fact, he is still in custody for this reason.

In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.

In terms of discipline, should we impose sanctions for this conduct?

Saturday, December 10, 2011

Follow up on the story about the prosecutors in the Ted Stevens case

About two weeks ago I commented on the report by the special prosecutor looking into the misconduct by the prosecutors in the Ted Stevens case.  See here.  Just a few hours ago, I commented on an op-ed piece on the need for more accountability for prosecutorial misconduct (here).  Here is a story that combines both of those themes.

Today there is a new related story about the Ted Stevens case.  But before I tell you that story, I have to give you a little background.  Back in February 2009, U.S. District Judge Emmet Sullivan declared several prosecutors in contempt for violating a court order to turn over documents to Stevens’ defense team. However, the judge did not impose sanctions, saying he would address sanctions at a later date. The prosecutors disclosed the information hours after they were held in contempt, but the judge did not lift the contempt finding until October 2010, more than a year later, when he declined to impose sanctions against the prosecutors.

The prosecutors, challenged the contempt order arguing that it was a criminal contempt order, which they apparently argued marred their professional careers and could impede their ability to practice in federal trial courts around the country.  They wanted the contempt order reversed because, according to their argument, it was issued without procedural protections required by the rules of criminal procedure.  Such a finding would have eliminated the "conviction" but would not have necessarily negated the nature of the conduct that resulted in the imposition of contempt.   

The challenge to the contempt order has now been decided by the U.S. Court of Appeals for the D.C. Circuit which held that the contempt order was civil, not criminal.  In doing so, thus, the court found the lower court did not err in holding the prosecutors in contempt, but at the same time apparently cleared them of the possible interpretation that they engaged in misconduct. The decision is available here.

In the end, however, this whole thing is becoming a comedy of errors - and when I say "comedy" I mean exactly the opposite.  First of all, there is the conduct of at least some of the prosecutors to begin with.  Second, there's the judge's handling of the order.  He should have imposed sanctions immediately.  There was no reason to wait more than a year to decide whether to impose sanctions or to wait more than a year to not impose sanctions.

Third, there is the finding of the court now saying the order was really civil in nature.  What's the problem with that?  It has the effect of saying that the prosecutors' conduct was not worthy of criminal contempt, letting them off the hook.

In the end, by having the court reject their argument, the prosecutors got a better result than the one they apparently had asked for.  The fact is that, at least so far, nothing has marred the careers of any of the prosecutors involved in the case and there is really no reason to expect that anything will. For more on that topic go here.

For more on this story go to the Blog of the Legal Times and the Wall Street Journal Law Blog.

Friday, December 9, 2011

Op-ed asks for prosecutorial accountability

Last month I posted a note (here) about a new short article in the Yale Law Journal Online on prosecutorial accountability. The article is called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct and it is available here.

Today, one of the authors of the article published an Op-ed piece in the National Law Journal calling for more accountability for prosecutors.  It is available here.  It states that "research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs."

I have been saying this for a long time, of course, so I am glad the problem is finally getting more attention.  Long time readers of this blog might remember that I called 2009 the year of prosecutorial misconduct because there were so many high profile cases reported.  Also, if you look at the number of posts by topic (on the right side panel) of this blog you will see that the "prosecutors" category has one of the highest totals.  Obviously, not all of the cases reported there involve intentional misconduct, but many do and more often than not my comments end with me complaining that courts and disciplinary agencies do not do enough to discourage misconduct among prosecutors.  For the most recent example, go here.

Wednesday, December 7, 2011

Illinois Disciplinary board granted authority to investigate, prosecute unauthorized practice of law

Illinois Lawyer Now is reporting that, earlier this week, the Illinois Supreme Court granted the Attorney Registration and Disciplinary Commission (ARDC) the authority to investigate and prosecute the unauthorized practice of law.

I have to say I found this surprising in the sense that I thought the ARDC already had that authority.  The ARDC is the disciplinary agency in the state and given that unauthorized practice of law is an ethical violation, you would think that it has the authority to deal with such cases.  Well, apparently, it didn't, but now it does.

But maybe I should not be surprised.  A couple of years ago, I posted a comment about a case that interpreted the notion of illegal practice of law in Illinois which I found odd.  I promised myself I would do some research on the question, but never got around to it.  Maybe now I will....

That case from two years ago was People v Harris, in which the Court of Appeals affirmed a conviction of a law school graduate who was not admitted to practice in Illinois for "false personation of an attorney."

Here is what I wrote back then:

The applicable statute in the case  reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”

The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."

This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.

Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?

After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.

The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.

Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.

The opinion is available here.

ABA Commission on Ethics 20/20 Releases Rule 5.4 Draft

The ABA Commission on Ethics 20/20 has released a discussion draft of a possible proposal to amend Model Rule 5.4, which, if adopted, would allow for very limited forms of nonlawyer ownership in law firms. The Commission is seeking feedback in order to determine whether it should make such a proposal.   The proposal can be found here.

The Commission encourages responses by late January 2011, so that they can be discussed at the Commission's February 2-3, 2012 meeting, and further asks that those requiring additional time submit comments by February 29, 2012. Comments should be submitted to Senior Research Paralegal, Natalia Vera,

For more on the story go to the Legal Ethics Forum and the Wall Street Journal Law Blog.

Some time ago, I posted a note about a bill in North Carolina on the same issue with a link to a comment that concluded this is a lousy idea (here).

Monday, December 5, 2011

Not one of the top blogs

Once again, my blogs did NOT make it into the list of the "best" law blogs.  What's the matter with you people?!  Don't you like me?   C'mon...  I am getting discouraged here!!!   I guess I need to get organized and start a campaign much sooner next year...  Is it that my blogs don't have "catchy" titles?   Then help me come up with a better one... 

All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam....  Decide for yourself after you read his post here.

Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.

Thursday, December 1, 2011

Proper role of the judge or abuse of discretion?

I have commented in the past on the controversy related to whether judges abuse their discretion when they impose unusual (some would say creative) forms of punishment.  For example, recall the stories on judges ordering defendants to go to church, to sing a song, or to suffer public humiliation.

Now comes news that a judge in Florida told a defendant she would reduce the defendant's sentence one day for every pound of weight he lost.  The defendant reportedly weighed 345 pounds at the time. He lost 25 pounds in 20 days and received early release.  Professor Jonathan Turley, who criticized judicial use of humiliation as abuse of discretion in the past (here), has also commented on this new case.   Go here for his comments.

California Supreme Court will hear disgraced journalist’s moral character case

Stephen Glass was once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital, producing knockout articles for magazines ranging from The New Republic to Rolling Stone.”  It was later discovered, however, that many of his articles were completely fabricated and he was exposed as a fraud.

Glass wrote some of the false articles while attending Georgetown law school.  He graduated and passed the bar exams in New York and California.  However, he has not been admitted to practice in either state.  According to the California Bar Journal, he withdrew his application in New York after learning his admission would likely be denied, and his application in California was, in fact, denied by the Committee of Bar Examiners (CBE).

This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.

This is the first time in 11 years that the California Supreme Court has agreed to hear a case of a candidate denied admission to the State Bar because of moral character issues.

The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation."

This is an interesting case, and a close call.  On the one hand, there should be no doubt that the conduct would have been sufficient to get Glass disciplined if he had engaged in it while he was a lawyer.  And, given the fact that he engaged in the conduct while he was a law student, I think there is plenty of support for the argument that Glass lacks the character expected of a member of the profession.  For a similar case, see In re Lamberis, 443 N.E.2d 549 (Ill. 1982), a case in which the lawyer was disciplined for engaging in plagiarism.  One interesting aspect of that case is the wide range of sanctions considered by the those evaluating the conduct.

On the other hand, Glass has argued that the conduct is now in his past, that he has learned his lesson and that he has been rehabilitated.  And this is the key.  What kind of evidence of "rehabilitation" should be require to defeat the notion that past misconduct can be used to predict future conduct?

That is a tough question indeed.  Do you believe that people "can change"?  How much do you trust people when they say "I won't do it again" - whatever that "it" is?

According to reports, Glass apparently has the support of some of the editors of the publications he lied to in the past, but the CBE contends that Glass' actions do not support his allegations arguing that Glass made misrepresentations to the New York bar when trying to win admission there.

I find this last allegation very troubling.   How can we really trust a candidate who says we should be confident we can trust him if it is true he has lied in an attempt to get admitted?  If I were voting on this case, and the CBE proved the allegation that the candidate made misrepresentations in the bar application in NY, I would vote against admission.

No date has been set for oral argument at the Supreme Court, so stay tuned.