More on the Dept of Justice action regarding prosecutors' misconduct

A few days ago I criticized the Dept of Justice's investigation that concluded certain prosecutors did not act intentionally after an independent investigator had found clear and intentional misconduct.  I called the whole thing "a joke."  Evidently, I am not alone in my criticism.  Today, Prof. Jonathan Turley has published a comment in which he agrees with my position, although he did not use the same language.  Being more eloquent than I, he simply said the DoJ "offered rhetorical punishment as a substitute for true punishment."  Like I said, "a joke."

You should read Prof. Turley's full comment here, but allow me to quote the beginning so you get the idea:

The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others. The slightest discrepancy in testimony or omission in reporting can bring a criminal charge from the DOJ. The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. 

Meanwhile, the Legal Ethics Forum is reporting that the firm that represented the defendant in the case in which the prosecutors engaged in the misconduct, not surprisingly, also disapproved of the DoJ's action and issued the following statement:

Today the Department of Justice demonstrated conclusively that it is not capable of disciplining its prosecutors. Apparently, prosecutors can violate the Constitution, deny the defendant exculpatory evidence demonstrating innocence, and introduce perjured testimony without any fear that they will be punished. Prosecutors orchestrated a miscarriage of justice in Senator Stevens’ case that caused the Attorney General of the United States to order the case dismissed. Trial Judge Emmet Sullivan declared that the misconduct was the worst he had encountered in 25 years on the bench. The misconduct caused a jury to render an illegal verdict, which in turn resulted in the loss of Senator Stevens’ re-election bid. And, the balance of power shifted in the United States Senate. The punishment imposed is laughable. It is pathetic. No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report.

Update on the prosecutorial misconduct report regarding the Ted Stevens case: prosecutors' office finds no intent after independent investigation found intent; prosecutors suspended without pay...

Long time readers of this blog will remember I have been following the story about prosecutorial misconduct in the Ted Stevens case and that I have posted numerous comments and links on it.  To access those, type "Stevens" in the "search this blog" box on the right side panel.

Here is the latest, as reported in the Wall Street Journal law blog:  "At the request of the chairmen of the House and Senate judiciary committees, the Justice Department turned over its internal report on the botched prosecution of the late Sen. Ted Stevens. The department publicly released [a] summary of the findings by its Office of Professional Responsibly [available here].  A separate court-ordered investigation concluded that prosecutors concealed evidence from Mr. Stevens’s defense team, but it stopped short of a criminal contempt finding."

I criticized this report here.  I argued that it was inconceivable that a report could find clear and intentional misconduct and not recommend sanctions.  (That report found the prosecutors acted intentionally to violate ethics rules).

Contrary to that criminal investigation, however, the DoJ's own report did not find that the prosecutors acted intentionally and for that reason concludes that the prosecutors should be sanctioned through forced time off without pay.

I think that is way too lenient.  An independent investigation found the prosecutors intentionally violated the rules but the prosecutors' own office found they did not.  What a joke.

I think that prosecutorial misconduct is a tremendous problem in this country and until the authorities start getting serious about it by imposing real sanctions it will continue to be a problem.  Obviously, there are exceptions, as in the Duke lacrosse team case, which resulted in the disbarment of the prosecutor, but these are rare.

The New York Times has more on the story here. The Blog of the Legal Times has more here. 

Using the prosecution of George Zimmerman for a PR course?

Obviously, there has been a lot of media coverage on the prosecution of George Zimmerman.  A lot of it has centered on the possibly unethical conduct of the District Attorney.  See here, here and here.  Given all the criticism and the material available already, John Steele of the Legal Ethics Forum has prepared a list of interesting questions, hypos, and issues that could be used to discuss important material in a Professional Responsibility class.  For the full list and a short discussion go here.

Conviction reversed because judge was working for the prosecutor at the time

The Legal Profession blog is reporting on a case in which the Minnesota Supreme Court reversed a criminal conviction because the presiding trial judge had been retained by the prosecuting attorney as a expert witness in an unrelated civil case.  The defendant asked the judge to recuse himself, but the judge denied the motion. 

Should an illegal immigrant - undocumented worker be admitted to the California bar?

At How Appealing, Howard Bashman rounds up articles about a pending application to the State Bar of California:

"Court to review request of illegal immigrant to practice law; A paralegal who was brought to the United States as a young child has been certified by the State Bar of California, raising broader questions about licensing illegal immigrants in other professions": Maura Dolan has this article today in The Los Angeles Times. In today's edition of The San Francisco Chronicle, Bob Egelko reports that "Court to decide if illegal immigrant can practice law."  And Howard Mintz of The San Jose Mercury News reports that "California Supreme Court to decide if illegal immigrant can practice law."

Thanks to John Steele of the Legal Ethics Forum for the link.

Federal bill proposed to codify prosecutors' duties

Two months ago, Sen. Lisa Murkowski (R-Alaska) introduced a bill called the Fairness in Disclosure of Evidence Act of 2012 (S. 2197), which is a bill to “require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for other purposes.” The Act begins by defining the term “covered information” to mean all “information, data,documents, evidence, or objects that may reasonably appear to be favorable to the defendant in a criminal prosecution brought by the United States with respect to (A) the determination of guilt; (B) any preliminary matter before the court before which the criminal prosecution is pending; or (C) the sentence to be imposed.”  For a comment on the bill go here.




Thanks to Roy Simon for the update.

Washington State Bar Association issues opinion on metadata

A few days ago, I posted a summary of a new opinion on an attorney's obligation when receiving a document by mistake (see here). A more complex problem arises when the document is received in electronic format (as a Word or Pdf file sent by email, for example).  In such a case, the document may contain important meta data, often easily accessible.  As explained in the ABA Center for Professional Responsibility website,

Metadata is loosely defined as "data about data." More specifically, the term refers to the embedded stratum of data in electronics file that may include such information as who authored a document, when it was created, what software was used, any comments embedded within the content, and even a record of changes made to the document.

While metadata is often harmless, it can potentially include sensitive, confidential, or privileged information. As such, it presents a serious concern for attorneys charged with maintaining confidentiality -- both their own and their clients. Professional responsibility committees at several bar associations around the country have weighed in on attorneys' ethical responsibilities regarding metadata, but there is no clear consensus on the major metadata issues. To help track current views on metadata and ethics, we've assembled the following chart.

A number of jurisdictions have issued opinions on the duties of an attorney who receives documents with metadata.  The Washington State Bar Association recently issued the most recent opinion on the subject.  You can read the full text of the opinion, which is very short, here.  Go here for a summary of the opinions on this subject from other jurisdictions. I also recently mentioned (here) an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.

According to the recent WSBA opinion, lawyers may review readily accessible metadata that an opposing counsel unwittingly transmits in an electronic document but must not use software to extract such metadata from a “scrubbed” document.  It places the duty to prevent the disclosure of data on the sender and only imposes on the recipient a duty to notify the sender that the document contains readily accessible metadata.  The recipient is not ethically obligated to stop reading the document or to return the document, but cannot attempt to dig up metadata that the sender affirmatively tried to remove. Such conduct would violate the rules regarding respect for third parties' rights and conduct prejudicial to justice.

How not to practice law: don't take depositions seriously

An attorney in Miami removed from a case by a U.S. District Judge for scheduling depositions at a Dunkin’ Donut shop, appearing in shorts and tee-shirts, drawing pictures of male genitalia to mock opposing counsel, and playing video games during depositions.  Go here for the full story.

Do attorneys have a duty to be up to date in the latest "technology"?

The Legal Talk Network has a podcast on whether there is a duty to know about modern technology here.

Another one of those "worst lawyer commercials" post

Here is yet another compilation of bad lawyer commercials. 

Suggestions on how to make sure the mandatory pro bono program in NY is a success

A couple of weeks ago I reported that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar.  See here.  Then I reported on the fact that not everyone liked the idea. See here.

Now there's more.  Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has written an article with suggestions on how to make sure New York's program works effectively.  You can read the full article here.

Nevada Supreme Court holds prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea

In a new case addressing the issue for the first time, the Nevada Supreme Court has held that a prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea.  The case is called Nevada v. Huebler and it is available here and here. 

Given Brady v. Maryland and the rules of professional conduct related to the special responsibilities of prosecutors you would think this is self evident.  But it isnt.  Some courts have held that a defendant can't challenge the validity of a guilty plea by arguing a Brady violation.  In Huebler, the court explains that "[t]his issue arises because Brady evolved from the due-process guarantee of a fair trial, . . . and therefore has been described as a trial right, . . .  but when a defendant pleads guilty, he waives several constitutional guarantees, including the due-process right to a fair trial, and any errors that occurred before entry of the plea."

After discussing the conflicting case law, the court agreed with other courts that have held that not requiring prosecutors to disclose exculpatory evidence before negotiating plea agreements could tempt prosecutors to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas.  In the end, the court concluded that

"[w]hile the value of impeachment information may depend on innumerable variables that primarily come into play at trial and therefore arguably make it less than critical information in entering a guilty plea, the same cannot be said of exculpatory information, which is special not just in relation to the fairness of a trial but also in relation to whether a guilty plea is valid and accurate.  For this reason, the due-process calculus also weighs in favor of the added safeguard of requiring the State to disclose material exculpatory information before the defendant enters a guilty plea.

It is not every day that an innocent person accused of a crime pleads guilty, but a right to exculpatory information before entering a guilty plea diminishes the possibility that innocent persons accused of crimes will plead guilty."  

Ethics 20/20 Commission has filed its final resolutions

Thanks to Andrew Perlman, of the Legal Ethics Forum and the 20/20 Commission for the following announcement and links:

Yesterday, the ABA Commission on Ethics 20/20 filed final versions of its resolutions and reports with the ABA House of Delegates.  The House will vote on the resolutions at the ABA's Annual Meeting this August.

You can find the Commission's overarching summary and report here.  If you're only interested in a description of what the Commission is proposing and why, this document should do the trick.

If you want more details, the Commission's resolutions and accompanying reports can be found at the following links:

Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)

Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)

Admission by Motion (proposals affecting the Model Rule on Admission by Motion)

Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5) 

Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)

Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

Judge Removed For Pursuing Unwanted Romance With Attorney

The Legal Profession Blog has a report on a case in which the Delaware Supreme Court has ordered the removal of a family court judge for attempting "to establish an inappropriately close social relationship with a young female attorney" who regularly appeared before him.

Article on the demise of mega firm Dewey & LeBoeuf

The law firm of Dewey & LeBoeuf was created in 2007 in the largest merger of law firms in history. During the past few weeks reports have been coming in that it is falling apart.  Last week its partners were told “to seek out alternative opportunities.” The firm is falling apart because of financial problems.   Here is a link to a short article in the New York Times that claims the firm's troubles "are only an extreme version of those facing many other firms."

Two reports on consequences for conduct in violation of Rule 3.3: one criminal prosecution of criminal defense lawyer and one disbarment

In a rare criminal prosecution of a defense lawyer, a prosecutor today at trial accused a veteran attorney in Washington of devising a scheme to use fake evidence and perjured testimony to clear a client in a drug case.  The Blog of the Legal Times has the story here.

Meanwhile in an unrelated story, the Legal Profession Blog is reporting on the disbarment of a lawyer who admitted to using false evidence in a case.

Judge dismisses drug case because of prosecutor's misconduct

Back in February, I posted a story about a judge who, after being asked by the Justice Department, refused to delete from an opinion the name of a district attorney who engaged in misconduct.  At the time I said that I was happy to see a rare example of a judge doing something to encourage proper conduct by district attorneys.

Today I am happy to report the latest chapter in this case:  the  drug-smuggling case has now been dismissed because of the prosecutor's misconduct.  The judge reportedly stated she wants to ensure that the U.S. Attorney's Office takes the misbehavior seriously.  Good for her!

You can read the full story here.

Thanks to the Legal Ethics Forum for the update.

Perspective on the American criminal justice system

Here is a link to an article by a public defender on his perspective about the criminal justice system.  Here is a key paragraph:

I have arrived at the view that the criminal-justice system is broken in ways that I never imagined as a teenage intern sitting in Judge Jones’ courtroom. While my focus is on defending individual clients, I believe that we must profoundly change our approach to criminal justice in the country. Otherwise, my task will remain Sisyphean, and the rhetoric in our public discourse about America’s commitment to the ideals of freedom and justice, so ubiquitous in this election year, will continue to mock and humiliate my clients.

Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.” 

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.

Illinois Court of Appeals on burden of proof needed to support argument that crime-fraud exception defeats claim of privilege

The Illinois Court of Appeals has issued an opinion in a case called People v. Radojcic on the level of proof necessary to support a claim that the crime-fraud exception to the attorney-client privilege applies.  You can read the full opinion here.

In this case, the state wanted to have the defendant's attorney testify and the defendant objected arguing the communication was privileged.   The state presented testimony to support its contention that the defendant communicated with the attorney to advance his attempts to commit crimes or fraud and the court held that that testimony was sufficient to meet its burden.

Specifically, the court stated that

"[t]o defeat the privilege, the party seeking disclosure must show "that a prudent person has a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." . . . Often, only the communication itself can show that the privilege does not apply. . . . In some such cases, when other evidence fails to show that the client has lost the privilege, the trial court may hear evidence in camera to determine whether the privilege applies. Before hearing evidence in camera, the judge should require the party seeking disclosure to show facts that would support a reasonable belief "that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies."

Based on this analysis, the court concluded that

"[b]efore the trial court excludes testimony from an attorney because of attorney-client privilege, the court must consider whether the party seeking to use the testimony has made a sufficient showing to give the court reason to question witnesses in camera to determine whether the attorney-client privilege applied to the communications between the attorney and the client. We find that the State presented testimony that would give a reasonable person cause to suspect that the client here used his communications with his attorney to advance his attempts to commit crimes or fraud. Accordingly, we hold that attorney-client privilege does not preclude testimony from the attorney here, and we reverse, and remand for a trial at which the State may call the attorney as a witness."

Court of Appeals holds John Yoo is immune from liability for his role in justifying torture

The Court of Appeals for the Ninth Circuit has just issued an opinion holding that John Yoo is immune from a lawsuit by a U.S. citizen who said he was tortured while detained in a military brig.  Yoo, as I am sure you remember, was one of the lawyers who designed the arguments used by the Bush administration to support the legality of its use of torture.  The opinion of the court is available here.

 For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.

A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical.  There has been a lot of discussion (and there is a lot of literature about it out there) already.

For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show.  Here are chapters 4, 5, 6 and 7 :

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

NY City Bar Ass'n new opinion on what to do when you receive documents by mistake

The Legal Quandary is reporting today that the New York City Bar Association has issued an opinion (available here) attempting to clarify what lawyers must and must not do when they receive material sent in error by an opponent.  I have not had a chance to read the opinion itself so I am just going to repeat what the LQ reported:

Part of the opinion is common sense – you . . . must promptly notify the sender, under Rule 4.4(b) of the New York Rules of Professional Conduct. The duty holds regardless of whether the communication is electronic or hard-copy, and applies no matter who sends the material. 

The tricky part? Now lawyers are tempted with the discretion to decide for themselves how to answer the next question: ”Now that I have it, and I told the other side about it, is it  it is ethically permissible to use this material?” Here the Opinion eases away from prior bans against such use.

Now, “depending on the facts and circumstances” use of the material may be appropriate, or at least allowed. Of course, you are free to engage your noblest qualities and decide that such use would be unfair, and decline to look. . . . Need you raise the issue with your client, who might be angry with you for passing up the opportunity to learn some secrets? You’re on your own there, but the comments to the Opinion suggest you may want to do that too.

So, green light right? Not so fast. The Opinion cautions that . . . “a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion”.

And my students complain that sometimes they don't get a straight answer in class!  Ha!  Welcome to the real world.

More on the new pro bono requirement in New York

Yesterday I wrote (here) that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar. The Wall Street Journal has a short piece on this here.  But the more interesting comment on this I have seen is over at My Shingle.com, a blog mostly dedicated to discuss issues related to the practice of law by solo practitioners.

In that comment, the author makes a good argument that  the new pro-bono requirement discriminates against solos and is unfair to new lawyers.  She argues, in part, that

. . .  given that law students are graduating deeply in debt, shouldn’t they focus on paying work . . . rather than working for free. Moreover, if students or new grads are going to work for free and haven’t yet found a job, isn’t it more sensible for them to spend their time finding paying work than doing pro bono?

Second, who’s going to supervise all of this unpaid labor? Have we forgotten that at the height of big law layoffs, displaced associates and unemployed lawyers flooded legal aid offices and couldn’t find work for free. Why should it be different now?

Third, . . . Isn’t it enough that many of the lawyers of my generation or older completely wrecked the legal profession by racking up huge profits-per-partner with a sense of arrogance . . .  I am outraged and offended that wealthy lawyers are passing the buck to those just starting out. Pro bono may be one of our professional obligations, but so too is training and mentoring and helping the next generation of lawyers – not making them the fall guys for our mistakes.

Although this ill-conceived program adversely impacts all lawyers, needless to say, it harms solo lawyers most of all. The New York Bar President anticipates that some new graduates will satisfy the pro bono requirement after they’ve taken the bar exam and have started working in paid positions. Uh – new solos don’t have that luxury – starting out, many solos will take any work to make ends meet as they prepare to start a firm. While it’s true that taking a pro bono or CLE can help new solos gain training, if a solo to be has a chance to do paid work for a lawyer, he or she need to jump on it because there’s no telling where the next pay check will come from.

You can read the full argument here.

Supreme Court to decide whether its ruling in Padilla should be applied retroactively

Last Monday the Supreme Court granted certiorari in Chaidez v. United States, which will give the Court the chance to settle a dispute among lower courts on whether its 2010 ruling in Padilla v. Kentucky should apply retroactively.  The case will be heard  heard and decided in the new Term (which starts next October)

In Padilla v. Kentucky, the Court held that attorneys for criminal defendants have a duty to inform their clients of the possibility of deportation as a consequence of a conviction.  Failure to provide this information would constitute ineffective assistance of counsel under the Sixth Amendment.

For more on the issue, go to crImmigration, Google News, UPI, Reuters, the Associated Press, Courthouse News, and JURIST.

Thank you to the SCotUS blog for the update and all the links.

New York to require pro bono service as requirement to admission to the bar

In my previous post I reported that the California bar is considering whether to impose a practical skills training requirement on lawyers applying for admission.  Now comes news that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar.  It will be up to the Committees on Character and Fitness to ensure that applicants have properly completed their pro bono requirement. Go here and here for more details and readers' comments.  The New York Times also has an editorial on this here.

I think the proposal has good intentions, but it may create a problem: law schools will have to create and provide those pro bono opportunities which will require them to  expand their clinical programs.  This costs money and that cost will be passed on to the students. 

California considers requiring practical skills training for admission to the bar

The Wall Street Journal law blog is reporting that the California bar is considering whether to impose a practical skills training requirement on lawyers applying for admission, which would mean applicants would have to attain a level of hands-on training before practicing.  Go here, here and here for more on the story and readers' comments.