Tuesday, January 31, 2012

On the story about a lawyer who sued himself

A few days ago I posted a note about the old story about a lawyer who sued himself (here).  The Australian Professional Liability blog picked up the story and added a few comments of its own here....

Attorney ads

The Criminal Justice Degrees blog has posted a selection of Top ten "weirdest and worst" lawyer ads.  You can watch them all here.

Monday, January 30, 2012

Can a suspended attorney engage in advocacy if a non-lawyer can do it?

Can a suspended attorney engage in advocacy of a type which is permitted to nonlawyers?  Last year, the Supreme Court of Pennsylvania confronted the issue and decided the answer should be NO.

In that case, a suspended lawyer undertook employment representing claimants and employers before the Pennsylvania Unemployment Compensation Board of Review, a tribunal which allows nonlawyer representation. Disciplinary counsel brought a petition charging Bargeron with contempt, alleging that in representing clients he violated a rule which prohibits a suspended lawyer from law-related activities including “appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.” In response, the lawyer cited Harkness v. Unemployment Comp. Bd., 920 A.2d 162 (Pa. 2007), in which the Pennsylvania Supreme Court held that a nonlawyer who represented claimants before the UCBR was not practicing law.  Confronted with the issue, the Court determined the lawyer was in violation of the rule and ordered him to cease and desist from representing clients before the UCBR.

The case is called In the Matter of Bargeron and it is available here.  More information here.

Sunday, January 29, 2012

A different type of prosecutorial misconduct

Typically, the more recent cases about prosecutorial misconduct we have discussed (and there have been many), have involved the duty to disclose information to the defense or issues related to improper arguments.  Here is a link to a new case from the Indiana Supreme Court that involves a different type of misconduct.  If I had to classify it, I'd place it under the notion of  "scope of representation and allocation of authority between client and lawyer," which is the title of Model Rule 1.2

The case is called In the Matter of Flatt-Moore and it involved a prosecutor who "surrender[ed] her prosecutorial discretion in plea negotiations entirely to the pecuniary demands of the victim of the crime."  In other words, she allowed the victim of the crime to dictate the terms of the plea agreement.  The court found that this conduct involved a prohibited conflict of interest and was prejudicial to the administration of justice.  The key to the case, though, was the fact that the terms of the plea were based on restitution of an amount that was higher than the amount of injury actually caused by the defendant.  The victim was trying to use the criminal process to obtain advantage in its civil claims against the defendant.  The prosecutor either did not realize this or knowingly tried to help the victim.

The court noted that although a victim is permitted to have significant input in the plea bargaining process, the  prosecutor engaged in misconduct by ceding to the victim absolute control of the negotiations concerning the plea.

Thanks to the Legal Profession blog for the information.

Budget cuts and layoffs in legal assistance

Last November the federal government enacted a bill that slashed federal  funding for civil legal assistance to the poor by about 14% — from  $404.2 million to $348 million, which is the lowest level since 2007.  For this reason, civil legal aid groups that receive money from the Legal Services Corp. have estimated that they will cut 163 lawyers and 230 other employees this year.  This is bad news at a time when it is universally agreed that the vast majority of the legal needs of the poor are not met and that most people do not have access to legal representation.  For more on this story go to to the Blog of the Legal Times and the Wall Street Journal law blog.

Attorney sued himself

Lowering the Bar has a short comment (here) on a very old story involving a lawyer who sued himself on behalf of a client.  The story is based on this clip which appeared in the New York Times in August of 1936  (I told you it was an old story)...

Wednesday, January 25, 2012

NY Bar Ass'n Committee on Ethics approves use of "Groupon"

Because ABA Model Rule 5.4 prevents a lawyer from sharing fees with non-lawyers in most cases, there has been some discussion on whether lawyers can try to attract clients by sharing a percentage of the fee with the service that provides the means for the lawyers to communicate with the possible clients.... or in short: can lawyers advertise and attract clients by participating in "Groupon"?

Back in September I wrote about ethical opinions in North and South Carolina on the issue (here). 

The question is now back in the news because the New York Bar Association's Committee on Ethics has issued a new opinion that concludes that "a lawyer may properly market legal services on a “deal of the day” or “group coupon”website, provided that the advertisement is not false, deceptive or misleading, and that the advertisement clearly discloses that a lawyer-client relationship will not be created until after the lawyer has checked for conflicts and determined whether the lawyer is competent to perform a service appropriate to the client."

You can read the opinion here

Thanks to the Wall Street Journal law blog for the information.

Lawyer faces criminal charges after showing up drunk to court

I have written before on cases involving attorneys showing up drunk to court (see here, here and here, for example).  Today the ABA Journal is reporting on a new case in which "a California lawyer has been criminally charged after allegedly appearing at court to represent clients at hearings in a drunken state."   According to the Visalia Times, the lawyer had twice the legal limit of alcohol in her system when she was given a breath-alcohol test as she entered the courthouse.  For more on this case go here, here and here.

Tuesday, January 24, 2012

Is creating a website a form of solicitation or just advertising?

Assume there is a big accident involving hundreds of victims and a lawyer sets up a website specifically targeted to victims to lure them into hiring the lawyer to file claims on their behalf. The lawyer is not sending out e-mails, spam, letters or visiting anyone in person. He just creates a website and waits for people to find it. Then assume that the jurisdiction where this happens has a 30 day "waiting period" type rule and the website was operating in less than 30 days after the accident. Has the attorney violated the waiting period rule by creating the website?

Obviously, at least in part, the answer depends on the actual language of the rule. Suppose the rule says it is a violation of the rule to "contact" a victim. Is setting up a website a way to "contact" victims.

This question is the subject of debate now in New York, where an attorney created a website in an attempt to sign up people who were stuck in the subway during the recent blizzard. The Daily News has more on the story.

New York blogger Eric Turkewitz has published a good comment in which he concludes that setting up the website violates New York’s 30-day anti-solicitation rule which states, in relevant part, that "No solicitation relating to a specific incident involving potential claims for personal injury . . . shall be disseminated before the 30th day after the date of the incident . . ."

There is no question in my mind that the website is targeted to a specific audience, but it is not so clear whether setting up a website is a form or "disseminating" solicitation materials.

A website is not something that is sent to the victims (like the letter in Shapero) or something that people receive when they don't expect it (like the newspaper page in Zauderer or a billboard that you did not expect to see when driving). The website is out there, somewhere in cyberspace where people have to actually look for it.

Obviously, if the lawyer is publicizing the website by other means - like letters or ads, etc. - the issue is easier to deal with, but assuming the lawyer simply created the website and let it sit there and people find it when they try to search for news on the blizzard or something like that, I am not so sure the question is as clear cut.

Having said that, as Eric Turkewitz explains, in New York, however, the question appears to be covered by Rule 7.3(c)(5) which states that a website maintained by the lawyer or law firm is not a form of solicitation unless the web site is designed for and directed to or targeted at a prospective client affected by an identifiable actual event or occurrence or by an identifiable prospective defendant.

UPDATE: Thanks to Eric Turkewitz again for the original story and for this update: the website in question has been turned off.

UPDATE (2/24/2012):  Last September, the ABA's 20/20 Commission circulated a proposal which, among many other things, proposed to add a paragraph to the comment to Model Rule 7.3 which says, in part, that "a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches."

In the example we are discussing here, the website did not seem to be directed to the general public, but it would "only be found in response to a request for information", etc. So is it an ad or is it solicitation?

UPDATE (August 2012):  The proposed amendment was adopted by the ABA and now appears as the first paragraph of the comment to Model Rule 7.3.  For more on the amendments to the rules adopted in August 2012 go here, here and here.

Another case that illustrates inconsistency in sanctions

The Legal Profession blog is reporting today on a case from Pennsylvania where an attorney was suspended for four years because he was found guilty in a money laundering case.  He was convicted as a result of an FBI undercover sting operation of bribes and kickbacks from unqualified loan applicants. The FBI agent  approached the bank president with an idea to conceal his ownership in property because of a bitter divorce.  The lawyer was sentenced to two concurrent terms of 30 months in prison.

So here we have what appears to be a felony conviction (I am not sure the court used the term felony, but given the length of the sentence it seems fair to call it that), for a crime of dishonesty and intent and yet the court does not impose disbarment. I don't get it. 

The case is called Office of Disciplinary Counsel v Sinko and it is available here.

Former Prosecutor Sentenced To Three Years For Accepting Drugs For Fees

Prof. Jonathan Turley's blog is reporting today that a former Florida prosecutor has received a three-year prison sentence for accepting more than 200 oxycodone pills as payment for legal services in 2010. Go here for more details.

Monday, January 23, 2012

D.C. Courts System Adopts New Code of Judicial Conduct

The Blog of the Legal Times is reporting today that "for the first time since 1995, the District of Columbia courts system has adopted new rules for judicial conduct, which encourage judges to take a more "affirmative role" in making sure pro se litigants understand legal proceedings."  For more information go here.  For a copy of the new rules go here.

Link to oral argument in Filarsky v Delia

You can now listen to the oral argument in Filarsky v Delia here.

Saturday, January 21, 2012

Supreme Court considers issue of qualified immunity for lawyers

Last week, the US Supreme Court heard oral arguments in a case called Filarsky v. Delia which asks the Court to decide whether a private attorney, retained by a city to assist in an administrative investigation, is entitled to assert qualified immunity from a suit brought by the person who was under investigation.

In a short article posted just prior to the oral argument, the SCOTUS blog, the best source of information for Supreme Court news, explained the background of the issue this way:

42 U.S.C. § 1983 provides that any person acting “under color of” state law who deprives another person “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”  Section 1983 principally serves to regulate the conduct of government employees.  But private individuals, too, can be liable when they are clothed with governmental authority.

The immunities available under § 1983, however, do not necessarily follow § 1983 liability.  Private persons sued under § 1983 may not be entitled to qualified immunity — which is available to a defendant unless he violated “clearly established” legal rights, of which a reasonable person would have known — even when government employees would be immune under identical circumstances.  So held the Supreme Court in Richardson v. McKnight and Wyatt v. Cole.  Nonetheless, those decisions acknowledged that private individuals might be entitled to immunity under different circumstances.

 The case of Filarsky v. Delia forces the Court to explore those circumstances once again.
You can read the full article here

After the oral argument, the blog posted that the "oral argument in Filarsky v. Delia veered in several directions, even discussing matters well outside the question presented. By the time the dust had settled, though, a majority of the Justices seemed inclined to hold that Mr. Filarsky – a private attorney who had provided services to a city government – was entitled to the protection of qualified immunity. More difficult to discern was the Court’s preferred rationale."  The full post oral argument analysis is available here.

Finally, go here for access to all the relevant documents related to the case including the briefs, the lower court's opinion and the transcript of the oral argument.

UPDATE: You can now listen to the oral argument here.

Thursday, January 12, 2012

Does the Constitution guarantee effective assistance of counsel to aliens during removal proceedings

Thanks to my friends over at the Legal Ethics Forum, I have discovered yet another blog to add to my subscription list.  This new blog (well, new for me at least) is all about issues over which the federal appeals courts are split.  Presumably, this makes these issues "ripe for review."

Today, they have posted a short comment (with lots of links) on the fact that circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings.  You can find it here.

More comments on Smith v Cain

On Tuesday I reported the Supreme Court's decision in Smith v. Cain in which the Court reversed a conviction because of the prosecutor's failure to disclose information to the defendant.  As I said, though, the opinion is very short and, oddly, does not really pass judgment on the prosecutorial misconduct.

Today, Jonathan Turley has published a short comment on Justice's Thomas dissent.  He also notes that the majority opinion (by Justice Roberts) "guaranteed that the case did not include language detailing the violations of the prosecutors" and suggested that the Chief Justice might have "use[d] his right to take a majority opinion to minimize the impact of a case." 

As to Justice's Thomas dissent, Prof. Turley concludes that "Thomas engaged in what can only be described as judicial artistic license" in voting against reversing what he called "an outrageous conviction" which "was a travesty by any measure outside of a Tehran Sharia court."

You can read the comment here.

For more on the case go here.

And, as usual, you find the relevant documents, transcripts and links to more information in the SCOTUS blog.

Yet another Paradise Lost: new movie about the West Memphis 3

I have blogged before about the movie Paradise Lost and the case of the West Memphis 3 and I just read that HBO is due to start showing the newest installment in the series.  This will be the third movie on the case of the trial of three young men for the murders of three eight-year-old boys in West Memphis, a small town in eastern Arkansas.  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. They were finally released last August. 

A film crew followed the case as it was being tried and eventually released an outstanding documentary called Paradise Lost: The Child Murders at Robin Hood Hills.  A few years later, a "Paradise Lost 2."

Here is a link to Roger Ebert's comment on the new Paradise Lost 3.

Tuesday, January 10, 2012

Quick analysis of Smith v Cain

I just published the news that the Supreme Court has decided Smith v Cain.  And just a few minutes ago, the SCOTUS blog has a short comment on the case here.  It starts,
Using brevity as a blunt instrument, the Supreme Court spent very little effort Tuesday in ordering the New Orleans district attorney’s office to provide a new trial in a murder case because prosecutors — using a tactic several times challenged before the Justices — had failed to hand over evidence that could have helped in defending a murder suspect.

Supreme Court decides Smith v Cain

As you probably remember, last November, the Supreme Court heard oral arguments (available here) in a  case on prosecutorial misconduct from New Orleans called Smith v. Cain. The oral argument before the Supreme Court did not go well for the office of the prosecutor. (See here for a report.)  This was the second case on prosecutorial misconduct out of the same office in two years.  The previous one, Connick v. Thompson, has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years."

One issue that divided the Court in that case was whether the evidence supported a finding that the misconduct was not an isolated incident.  Evidently, in this particular case the Court thought the misconduct was enough to warrant reversal.  The opinion does not really talk about misconduct as an ethical matter but simply concludes that the failure to disclose certain information to the defendant constituted a violation of the prosecutor's duty under Brady v. Maryland.  As predicted by those who reported on the oral argument, the Court has decided to reverse the conviction and remand the case.  The vote was 8 to 1.  Justice Thomas was the only dissenter.  The opinion, which is only four pages long, and the dissenting opinion are available here.

For analysis from the SCOTUS blog go here.  To listen to the announcement of the decision of the court (and more) go here.

Thursday, January 5, 2012

How not to practice law: lie to cover up your mistakes

I sometimes tell my students that my kids (ages 7 and 5) could teach some aspects of the course:  don't steal, don't take what's not your etc.  Here is another simple lesson I have already taught that my kids:  if you realize you made a mistake don't lie to try to cover it up, it will only make matters worse.  Instead, admit it and try to find a way to fix it.  Try to minimize the consequences if possible but ultimately accept them and learn your lesson from the experience.

Here is a new case that illustrates this.  The Legal Profession blog is reporting that the Massachusetts Supreme Judicial Court has ordered a two-year suspension in a case where the attorney had committed negligent misappropriation.  In response, the attorney made false representations to Bar Counsel and submitted false documents to support his explanation.

Note that the charge here was based on negligence.  That is significantly different that cases where the attorney knowingly tries to steal money from clients.  The attorney made a mistake; an important mistake, clearly, and a mistake that would have consequences, but there is no question that lying about it made it worse.

DC ethics opinion on referral fees for sending clients to non-lawyers

The D.C. bar's ethics committee has issued a new opinion which concludes that District of Columbia lawyers may accept referral fees for sending clients to non-lawyer service providers provided that the client gives informed consent and other conditions are satisfied. The District of Columbia Bar Legal Ethics Comm., Op. 361, 11/11 is available here.

New summary of the ABA Commission 20/20 work

The ABA's Commission 20/20 continues to work and here is its most recent summary of the Commission's actions.