Parody of Law & Order

The most recent episode of the show "Community" was this parody of Law & Order:

Circuit split over applicability of attorney-client privilege to patent agents

The blog "Circuit Splits" has a post on the debate over the applicability of the attorney-client privilege to patent agents here.

Prosecutorial ethics in the news

As I get ready to discuss prosecutorial ethics next week, there are two items in this week's news on the subject:

The Blog of the Legal Times is reporting on a case in which alleged Brady violations reopen 27-year-old homicide case.

The National Law Journal has an editorial urging the Supreme Court to grant review in a case that alleges prosecutorial and judicial misconduct.

What should the judge do when an attorney claims he settled a case without consent from the client?

Should a lawyer be allowed to change his mind about a settlement agreement after realizing that the jury would have given his client more money than he agreed to settle the case for?  My guess is that your quick answer would be something along the lines of  "No. A deal is a deal and if you make a bad deal you have to live with the consequences."

OK, but what if the lawyer argues that he settled the case without authorization from this client (thus, by the way, admitting to unethical conduct)?  Hmm. Well, in that case, you'd think that the client should not suffer the negative consequences of the lawyer's unethical conduct.  But, even then, can't you argue that the deal is valid and that the client's claim has to be against his own lawyer for breach of fiduciary duty? 

These questions were presented to a judge in California based on the following facts (as reported in The Recorder).

The plaintiff in the case was to be transported from a Los Angeles hospital to a psychiatric facility in San Diego.  Once loaded into the ambulance, the EMTs buckled him onto a gurney but allowed his left arm to remain free because, they said, he was not being combative.  After a few minutes, the plaintiff had taken off the restraints and jumped out of the moving vehicle onto the freeway.  He filed a claim alleging ”severe, permanent brain injury” and seeking $21 million in damages.  After a full trial, the jury came back with a verdict after four hours of deliberations.

Apparently, the lawyer for the plaintiff thought a four hour deliberation meant that the jury would return a verdict for the defense and he requested a recess to suggest a last-minute settlement negotiation with defense counsel.  The parties conferred in the hallway, with their clients present, and agreed to settle for $350,000.  The parties returned to the courtroom and after they announced they’d reached a settlement, the judge dismissed the jury.

At that point, instead of entering the terms of the settlement into the record, the plaintiff's attorney went to poll some of the dismissed jurors.  The terms of the settlement were not officially entered into the record by the defendant's counsel either.

When plaintiff's lawyer learned that the jury’s verdict would have favored the plaintiff with a damages award of $9 million, he went back into the courtroom and argued that he had made a mistake and that he did not have his client's consent to agree to the settlement.

Some have argued that the claim is ridiculous because the client was present during the settlement negotiation.  I don't necessarily agree with this.  The fact that the client is present, in and of itself, does not mean the client agreed to what the lawyer did.  But the argument does raise a number of questions.  If it is true that this particular client had diminished capacity and had brain damage the attorney may very well have acted without authority. If the client had diminished capacity why didn't he have a guardian or a representative helping make decisions?  On the other hand, if the client had enough capacity to make decisions up to the point of settlement, how come the lawyer now claims he didn't?   Either way, the lawyer seems to have acted improperly.

In a post trial motion, the attorney for the defendant argued that "If plaintiff is allowed to get away with such gamesmanship in this case there is nothing to prevent any plaintiff's counsel from testing the waters with one jury, settling the case without authority from the client, interviewing the jurors to see which way they actually were leaning, and then repudiating the settlement and seeking a retrial."

After listening to arguments, the judge decided to order a new trial.  The lawyer either acted unethically or falsely admitted to unethical conduct in order to get out of a settlement he had agreed to (which is unethical itself because it is dishonest), and may have committed malpractice, but the judge has given him a second chance.

What do you think of the judge's decision?

Can lawyers participate in website that provides answers to legal questions to customers for a fee?

The South Carolina Bar’s Ethics Advisory Committee has issued an opinion (available here) in which it addresses the question of whether it is proper for an attorney to participate in a website which offers answers to questions for a fee. 

As described in the opinion, the website

"allows members of the public to post questions concerning a number of different topics for a fee. . . . .Members of the public may ask questions that will be answered by lawyers, doctors, nurses, mechanics, and other professionals. Members of the public pay the website a fee to be able to ask questions. In turn, the professional, here a lawyer, would receive the questions from the member of the public and would answer the question. After the question is answered, the lawyer is paid a fee from the website for answering the question for the member of the public. Members of the public could be from and ask a question concerning any state or other jurisdiction and are not limited to South Carolina."

Based on these particular circumstances, the Committee concluded that lawyes are not allowed to participate in the website's services.  The Committee concluded that a lawyer’s participation under these circumstances would be improper but also that "[a]s to legal information websites in general, if a website complies with all communications and advertising rules, [a] Lawyer could participate in such a program but with specific caution against inadvertently forming an attorney-client relationship by offering more than basic information of general applicability. Where legal advice is provided, it is improper for Lawyer to accept compensation from the website provider without complying with Rule 1.8(f)."

The Ethical Quandary and the Legal Ethics Forum have more on the story.

Court dismisses case against proponent of jury nullification

In a couple of weeks I will be discussing the concept of jury nullification in my Professional Responsibility class, so I thought I would link to this story reported today.

U.S. District Judge Kimba Wood (of the Federal District Court in Manhattan) has dismissed a claim against a retired chemistry professor who was arrested and charged with a misdemeanor for repeatedly handing out pamphlets to people outside a lower Manhattan courthouse urging jury nullification.   Go here and here for more on this story.

Jury nullification, of course, refers to the right of a jury to disregard the law when making a decision.  As judge Wood emphasized, an individual should not be penalized for expressing his or her approval of jury nullification, but I think there is still some debate as to whether it would be improper for an attorney (during a trial) to remind the jury of its right to nullify, let alone ask, encourage or urge the jurors to do it.

There is a lot of literature out there on this subject and there are a number of organizations that support the concept.  Go here and here for two examples.

More criticism of the prosecutor in Zimmerman case

I recently posted links to a video and some articles and comments criticizing the prosecutor in the Zimmerman case (here and here).  Here is another one.  Given a new photo released today that shows Zimmerman was bleeding after the incident, Professor Jonathan Turley concludes that

"with this photo, the charge of second-degree murder appears even more excessive and undermines Special Prosecutor Angela Corey’s claim that she was not affected by the political pressure to charge Zimmerman. I can understand a manslaughter charge, even with the photo, but no reasonable prosecutor would consider the second-degree murder charge as based on this evidence. Corey clearly must have seen this photo and the reports before her charging of Zimmerman."

Supreme Court holds private attorney is entitled to immunity when hired by government

Last week, the US Supreme Court issued its opinion in Filarsky v. Delia holding that 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.  For my previous coverage of the case go here, here, here and here.  You can read the Court's opinion here. For some commentary on the case you can go to SCotUS blog,

Is There an Ethical Duty to Convey Offers to Mediate?

Is There an Ethical Duty to Convey Offers to Mediate?   I think so....Discuss... here. 

What to expect from the ABA 20/20 Commission

It was recently reported that ABA's Ethics 20/20 Commission has decided not to draft a proposal on non-lawyer ownership of law firms.  However, next August the Commission will be proposing changes to Rules relating to technology and confidentiality, technology and advertising, outsourcing, and lawyer mobility issues. You can find a slightly dated list of proposals here. The Commission will be submitting final versions of the proposals next month.

Thanks to Prof. Andrew Perlman for the update.

Ethics 20/20 Commission Suspends Campaign to Draft a Proposal on Nonlawyer Ownership of Law Firms - UPDATED

The most controversial topic in Professional Responsibility circles today will continue to be unresolved for now... or, more accurately, there won't be any proposed changes to the current appproach. The ABA Journal is reporting that the ABA's Ethics 20/20 Commission has decided not to draft a proposal on non-lawyer ownership of law firms:

"In a joint statement released today, co-chairs Jamie S. Gorelick and Michael Traynor confirmed that the commission agreed at its meeting last week in Washington, D.C., to shelve plans to submit a proposal on nonlawyer ownership for consideration by the House in when it convenes during February's 2013 ABA Midyear Meeting in Dallas."

Go here for the details.

UPDATE (4/18/12): The Wall Street Journal Law Blog has more on the story here.

Judge in Zimmerman case recuses herself

Judge in Zimmerman case recuses herself.  Story here and video below (after a short commercial). 

Visit msnbc.com for breaking news, world news, and news about the economy

Thanks to the Legal Ethics Forum for the link to the video.

Some links on ethics and the prosecution of George Zimmerman for the homicide of Trayvon Martin

A few days ago, I posted a short interview with Alan Dershowitz in which he argues the prosecutor in the George Zimmerman case acted unethically.  He is not alone on this.  The Legal Ethics Forum has posted a list of helpful and interesting links on the on-going controversy.  Here is the list:

Andrew Perlman and John Steele questioned the behavior of Zimmerman's prior lawyers as they announced that they no longer represented Zimmerman.

Monroe Freedman questions the prosecutor's press conference.

Dan Markel, at Prawfsblawg, asks questions about the charging decision.

Radley Balko, at Huffington Post, looks more broadly at the ethcis of charging decsions.

Alan Dershowitz, in a TV interview we posted about, says that the probable cause affidavit was "unethical."

At National Review Online, David French and Andrew McCarthy disagreed about the quality of the probable cause affidavit.

At the Atlantic, Andrew Cohen has been running some pieces (here and here) that strike me as partisan and shallow, but check them out and see what you think.

Empty Wheel gives the probable cause affidavit a close, critical reading.

Here's the link to the prosecutor's press conference. The prosecutor, Angela Corey, discusses who she works for, what she's ethically allowed to say about the case, the no-contact rule, what level of evidence justifies a charging decision, and other issues.

George Conk, at Otherwise, has thoughts about the prosecutor.

Thanks to John Steele of the Legal Ethics Forum for sharing this great list.

Alan Dershowitz thinks the prosecutor in Zimmerman case was unethical in arguing for probable cause

Here is a video of an interview with Harvard law professor Alan Dershowitz in which he argues the conduct of the prosecutor in the case against George Zimmerman was unethical.




Thanks to the Legal Ethics Forum for the link.

Lousiana prohibits applicant from ever applying for admission to the bar in the future

The Legal Profession blog is reporting today on a case in which the Louisiana Supreme Court has not only denied a bar applicant's request for admission to the bar, but has decided to "permanently prohibit her from reapplying in the future."  The opinion is available here.

The day before the applicant was to be sworn in, her law school rescinded her Dean's Certificate in light of allegations of embezzlement of funds of the Student Bar Association, of which she had been the president.  As a result, admission was denied and a commissioner was appointed to take character and fitness evidence.  The record established that she destroyed SBA records that she had in her possession, failed to cooperate and "forged the signature of her attorney on a letter directing her bank not to comply with a subpoena issued by her law school."  She was found to have engaged in unauthorized practice of law and to have improperly shared fees with an attorney.

The court concluded that "[g]iven the egregious nature of [her] wrongdoing, as well as her pattern of misconduct occurring over many years, we can conceive of no circumstance under which we would ever grant her admission to the practice of law in this state."

I don't think I have ever heard of a lifetime ban like this one, although I, of course, have not read every single decision denying admission to an applicant.  

How not to practice law: stop paying child support

The New York Appellate Division for the First Judicial Department has indefinitely suspended a lawyer after it was found had not payed child support in three years and was almost $91,000 in arrears.  The order is available here.  The suspension will remain in effect until the court is satisfied that the attorney has paid in full. 

Thanks to the Legal Profession blog for the link.

Congress discusses reform to discovery in criminal cases; Dept of Justice objects

Last month, Sen. Lisa Murkowski (R-Alaska) introduced such a bill to broaden the scope of information that prosecutors must disclose to defense lawyers and more than 100 prominent lawyers have signed a letter urging Congress to take up criminal discovery reform.  The Justice Department, however, said in a statement that the proposed discovery legislation “would upset our system of justice by failing to recognize the need to protect interests beyond those of the defendant” and “would radically alter” the balance between protecting defendant rights and safeguarding against witness retaliation, disclosing ongoing investigations and protecting the national security.  The Blog of the Legal Times has more on the story here.

Can an entity file a pro se claim? Should the entity suffer the consequences because a complaint is filed by a non-lawyer?

The Illinois Supreme Court recently heard oral arguments in an interesting case that raises some interesting questions as to what constitutes the practice (and unauthorized practice) of law and as to what is the proper consequence in a case where a party is represented by someone who is not authorized to practice law.

The facts of the case are relatively simple.  The City of Chicago Department of Administrative Hearings entered four default judgments against a corporation, for certain ordinance violations.  Upon hearing about this, the president of that corporation filed four motions to set aside the default judgments, alleging that the City did not properly notify the corporation of the hearings regarding the violations. After a hearing to discuss the matter, an administrative law officer denied relief and instructed the president of the corporation that he had a right to appeal.  The officer told him that he could go to a certain office and file the necessary paperwork.  The president immediately went to the office, completed a form and filed it.  The form was a pro se complaint for review by a trial court under the Administrative Review Law.  Approximately six months after the complaints were filed, an attorney filed an appearance on behalf of the corporation at which point the City moved to dismiss the complaint on the basis that the corporation’s president who had filed the complaint in the first place was not a licensed attorney and, thus, was unauthorized to file complaints on behalf of a corporation. The trial court granted the City's motion and denied the corporation's motion to amend the complaint to include the signature of its attorney.

On appeal, the City is requesting the Supreme Court to recognize that an entity can never file a pro se claim and to impose an absolute rule that a complaint filed by a non attorney other than in a pro se case must be considered void ab initio.

The corporation is arguing that a better policy is to consider the circumstances and to decide cases on a case by case basis.  In this case, either because the filling out of a form at the direction of the administrative law office was not the practice of law to begin with or because, if it was, there was no harm to the corporation, the corporation should not lose its rights to appeal.  According to this view, the main thing is to consider the reasons why we have a rule against the unauthorized practice of law to begin with.

It seems to me this second view is more sound, and, if nothing else, more fair.  I understand we need to protect the public from inadequate representation by people who are not qualified to practice law, but that is not what happened in this case. 

The case is called Downtown Disposal Services v City of Chicago and the lower court opinion is available at 943 NE2d 185 (Ill App 2011).  You can watch the oral argument here.  If you prefer just the audio, you can listen to it here.

Illinois adopts new rule to help deliver legal services after major disaster

The Illinois Supreme Court announced today that it has adopted a new rule to facilitate the delivery of legal services in an emergency resulting from a major disaster.  In the case of an Illinois disaster, new Supreme Court Rule 718 would allow attorneys who are licensed in another state to provide pro bono publico legal services to residents of Illinois. In the event of a disaster in another state, the rule would allow attorneys licensed outside of Illinois to provide pro bono legal services to residents of the stricken state who have been displaced to Illinois because of the disaster.  The rule also would allow attorneys licensed in a stricken state to provide legal services in Illinois as long as those legal services arise out of and are reasonably related to the lawyers’ practice of law where the major disaster occurred.   Illinois Lawyer Now has more information here.

The rule is based on the ABA's "Model Court Rule on the Provision of Legal Services Following a Major Disaster" which has now been adopted in at least 14 states.  (Go here for a chart on which states have adopted the rule.)

WSJ comment on issue of whether non lawyers should be allowed to own lawfirms

The issue of whether non-lawyers should be able to "own" (as in own investments in) law firms is back in the news.  I reported on this most recently here.  Today, The Wall Street Journal law blog has posted a short comment on the subject here.  It explains that the main argument against allowing non lawyer ownership is that opening up law firm ownership will erode professional ethics, while the main arguments in favor or allowing it are that expanding ownership could help smaller law firms compete with the big firms, and that it could help make legal services more accessible to consumers.