Tuesday, June 26, 2012

How not to practice law: if you are a judge, go ahead and preside over a criminal hearing in a case in which you are the victim

Once again let's add another incredible but true story to our long list of things you should NOT do if you want to continue to practice law.  As usual, this list involves conduct that is so basic you'd think anyone would know what they are doing is improper.  Nothing complicated here.  It would be funny, if it weren't so serious.... 

So here is today's entry:  a judge is the victim of a crime and then finds himself presiding over the hearing to set bond for the person accused of that crime.  Apparently it did not occur to the judge that it would be a good idea to let a different judge take over... 

Interestingly, the judge just got a reprimand, maybe because, after all, he allowed the defendant to be released without bond. The actual letter of reprimand is available here. The Legal Profession blog has more here.

Oregon Supreme Court imposes discipline but refuses to explain why

Here is a link to a strange opinion by the Oregon Supreme Court in which the Court imposes an 18 month suspension.  What makes the opinion strange in my view is the fact that the Court explicitly refuses to explain its reasoning.  It simply says that  "We . . . conclude that an 18-month suspension is the appropriate sanction. An explanation of the extensive facts related to the four matters underlying this proceeding and of the appropriateness of the sanction would not benefit the bench, bar, or public."

I don't know but it seems to me that a little guidance so that other lawyers can learn from this one's mistakes and misconduct wouldn't hurt....

The case is called In re Goff and it is available here.

Thanks to the Legal Profession blog for the link.

Supreme Court decides a case on possible prosecutorial misconduct

While there are other cases capturing the attention of the public over at the Supreme Court, about two weeks ago, the Court handed down an interesting (and short) opinion on whether, as part of a closing argument, a prosecutor can suggest that the defendant, his attorney, and an expert witness (psychiatrist) colluded to fabricate a defense if the prosecutor subsequently states that it was not unethical for the defense attorney to do so.  In response, the Court found that the prosecutor's statements taken together did not rise to the level of violating the defendant's due process rights. The case is called Parker v. Matthews and it is available here.   The Legal Ethics Forum has more details and a short debate in the comments section (here).  I think the decision is wrong and that the conviction should have been reversed because of the prosecutor's comments. If you search here for "prosecutor's comments" you will find a number of cases in which court's have reversed convictions in similar cases. 

Wednesday, June 20, 2012

More on the criticism of the prosecutor in Zimmerman case; apparently she does not like to be criticized

I have posted several links to articles and videos in which other have criticized the conduct of the prosecutor in the George Zimmerman case in Florida (see here and here).  Among those critical of her conduct is Harvard Law Professor Alan Dershowitz.  Here is a video of an interview in which he says the prosecutors conduct was unethical.  Here is an article he published on the issue.

Well, apparently the prosecutor did not appreciate his comments and gave Harvard a call in which Dershowitz claims she went on a rant, including threatening to sue Harvard, in response to his comments.  Here is Dershowitz side of the story.  And here is a short debate on it at the Legal Ethics Forum.

I don't know what the prosecutor actually said nor what she claims would be the base for the claim against Harvard, but having heard Dershowitz interview, it seems to me his comments were pure opinion on a matter of public interest which means there is no basis for a defamation claim.  If the prosecutor does not like the criticism maybe she should not put herself in the middle of a public controversy.

Having said that, though, interestingly, in the article in which Dershowitz describes the prosecutor's call to Harvard he does make a statement about her conduct that sounds like a factual (as opposed to an opinion statement).  He says that she "willfully omitted" relevant information from the affidavit used to charge the defendant.  That statement, which I did not hear him make in the TV interview, could be argued to be a statement of fact about illegal conduct on her part, which, if untrue, could be used as a basis for defamation.  The problem is that, again, the determination of the whether the statement is "true" is based on a difference of opinion as to what the law requires in terms of support for an affidavit in support of an indictment.

How not to practice law: if you are a judge, tell your clerks to decide your cases for you while you are on vacation

Professor Jonathan Turley is reporting today that an Associate Circuit Judge in Missouri is under investigation for allegedly allowing her clerks to handle litigation matters as she vacationed in China last year. Go here for the story.

UPDATE (1/6/13):   The Commission on Retirement, Removal and Discipline recommended the judge be removed from office and the Missouri Supreme Court will now review the case.

State Bar of California supports illegal immigrant seeking bar admission

Last month I posted links to the debate in California as to whether an illegal immigrant should be allowed to practice law (see here).  The issue has not yet decided but the State Bar of California has filed its position in the case arguing that an illegal immigrant who passes the bar exam and demonstrates good moral character should be eligible to practice law. The court has also asked state Attorney General Kamala Harris, the Obama administration and other interested parties to submit written arguments in Garcia's case. It has not yet scheduled a hearing. Go here for more on the story.

Washington Supreme Court Adopts Standards for Indigent Defense

The Legal Ethics Forum is reporting that  the Supreme Court of Washington has adopted new standards for indigent defense.  Go here for the details.

Ohio opinion finds secretly recording a conversation is not unethical

In  a recent advisory opinion the Supreme Court of Ohio Board of  Commissioners on Grievances & Discipline has found that a legal but secret recording of a conversation by a lawyer is not inherently unethical. The opinion overrules an older opinion that had concluded the opposite.  You can read the opinion here.  The Legal Profession blog has more information here.

Tuesday, June 19, 2012

Comment on outsourcing proposal

Here is a link to a short comment on the issue of outsourcing of legal services and the ABA's 20/20 Commission's paper and proposal on the subject.

ABA Commission on Ethics 20/20 is seeking comments on a newly released Issues Paper

The ABA Commission on Ethics 20/20 is seeking comments on a newly released Issues Paper entitled "Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits of Virtual Presence in a Jurisdiction."  The Commission’s Working Group on Conflicts of Interest, Uniformity and Choice of Law developed this paper. The Commission has taken no position regarding the issues raised or questions posed therein. Your comments will assist the Commission in its consideration of these issues.  Please e-mail your responses by July 31, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org. Comments and submissions may be posted to the Commission’s website.

Wednesday, June 13, 2012

Op-ed on right to effective assistance of counsel at the plea bargaining stage

In a recent Op-ed piece in the ABA Journal, Erwin Chemerinsky (dean of the Univ of California - Irvine law school) writes that "it is important to not lose sight of two [Supreme Court] cases that are likely to have a dramatic effect on lawyers and judges. In Missouri v. Frye and Lefler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage. Because about 95 percent of all criminal convictions are gained via guilty pleas, these cases will have a significant effect on the practice of law and also likely will lead to a large number of challenges by individuals seeking to have their pleas overturned."  You can read the full article here.

Thanks to the Legal Ethics Forum for the link.

How not to practice law: lie about your assets, don't file tax returns

Continuing our on going list of simple rules on how NOT to practice law, here are two quick ones:

1.  Claim you don't own any jewelry in your bankruptcy application when you are wearing a Rolex.  This earned a three month suspension for this lawyer.

2.  Don't pay your taxes, particularly if you are a former attorney for the IRS and now in private tax law practice (see here).

NY Court finds that wrongfully imprisoned client cannot collect noneconomic damages in malpractice action

About a month ago, the New York Appellate Division, Fourth Department, issued a very short opinion reaffirming the view that a plaintiff cannot recover non-pecuniary damages in a legal malpractice action.  According to the court, New York courts have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to non-pecuniary damages arising out of representation in civil proceedings.  Here, the plaintiff argued the case was different because his claim involved a malpractice on the part of a criminal defense lawyer.  The plaintiff argued that, based upon the type of egregious harm most likely to be suffered by a defendant who is the victim of malpractice in a criminal action -- the loss of liberty attendant to a period of incarceration -- harm that is non-pecuniary in nature.

Thus, assuming the statement about the state of the law in legal malpractice in civil cases is correct, a decision in favor of the plaintiff in this case would have meant that plaintiffs suing criminal defense lawyers for malpractice would have the right to recover for a certain category of damages that plaintiffs suing for malpractice in civil cases wouldn't. 

The court did not agree with the plaintiff and held that plaintiffs in malpractice actions are not entitled to anything but pecuniary damages. 

The court concluded that "[a]llowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions."

I have not researched the question to see what is the prevailing view on this in other jurisdictions, but I do not find this reasoning convincing. I understand the concern about a chilling effect, and the desire to provide incentives for attorneys to help indigent defendants.  But I don't understand the need to limit the possible recovery of a plaintiff that has the right to recovery.

The burden of proof in any malpractice case is high and in criminal cases it is even higher since the former criminal defendant has to show actual innocence (in most jurisdictions including NY - something the court gets wrong in the opinion, by the way).  This means the likelihood that a plaintiff would be successful in a malpractice case of this sort is low, and if the case is such that this is possible it probably involves clear negligence on the part of the lawyer.  Why deny recovery to a deserving plaintiff who has clearly suffered an injury caused by a negligent lawyer?

The case is called Dombrowski v. Bulson and the court's opinion can be found here.