Sunday, December 30, 2012

New ABA Commission 20/20 proposals

The ABA Commission on Ethics 20/20 recently filed four resolutions and reports for the ABA House of Delegates to consider at its February 2013 midyear meeting.   Over at Legal Ethics Forum, Professor Andrew Perlman has posted summaries of the proposals and links to the relevant documents.  The proposals address issues relating to the increasing globalization of the legal marketplace and, with one exception, focus on issues arising for foreign lawyers seeking to practice in the U.S. (i.e., inbound foreign lawyers). 

Sunday, December 23, 2012

Your Client Has Obtained Privileged Documents Belonging to the Adversary. What Do You Do Now?

Over at the Legal Ethics Forum, Nicole Hyland asks "Your client has obtained privileged documents belonging to the adversary. What do you do now?"  Go here for her answer and comments.

Wednesday, December 19, 2012

Should Justice Scalia recuse himself from cases related to gay marriage? part 2

A few days ago, I posted a note with links to several articles on whether Justice Scalia should recuse himself from cases related to gay marriage.  Today, Professor Richard Painter replied to some of the criticism in those articles in The Legal Ethics Forum and other forum participants posted comments to his reply.  Take a look at the discussion by going here.

Tuesday, December 18, 2012

National Law Journal survey on hourly fees

The National Law Journal has published a survey of hourly fees based on information provided by 55 of the nation's largest firms.  The full survey results are available here.  Among other things, it shows that the highest billing rate is $1,285 an hour and that the median hourly billing rate for partners is $501 and for associates is $317.

60 Minutes (the tv show) segment on wrongful convictions

Last week, the TV show 60 minutes devoted one of its segments to the problem of wrongful convictions.  The show was mostly about police interrogation techniques in Chicago which has allegedly produced twice as many cases of false confessions (leading to wrongful convictions) than any other city in the US.  However, there is a section of the show that discusses the role of prosecutors.  The interview with Chicago's Cook County State's Attorney Anita Alvarez is particularly troubling.  She is simply not willing to admit to the possibility that mistakes were committed.  I don't think she comes out looking particularly well, but you can judge for yourself.  The segment appears below in its entirety, or you can watch it in the 60 Minutes website where you will also find more information.

UPDATE:  The ABA Journal and the Chicago Tribune are reporting that Alvarez sent a letter to CBS complaining that she was unfairly portrayed in the clips chosen for the show.

Sunday, December 16, 2012

Should Justice Scalia recuse himself from cases related to gay marriage?

The question of how to determine when a Supreme Court justice should recuse him or herself has been in the news a lot this year. It was part of the conversation leading up to the appeal on the Obama administration's health care reform, for example, and many have argued the Court should adopt rules on the subject. I reported on this here, here and here.

The question is now back in the news. Over the last few days, at least three articles were published calling for Justice Scalia's recusal. The articles were published in The Daily Beast, The Chicago Tribune and The Huffington Post.

Obama administration drops attempt to regulate the representation of Guantanamo detainees

Back in September, I wrote about the Obama administration's attempt to interfere and regulate the representation of Guantanamo detainees. See here. Some time later, a federal court refused to go along. See here. Now comes news the administration has dropped its appeal. Go here for the full story.

UPDATE 11 pm: The SCOTUS Blog has more on the story here.

Friday, December 14, 2012

West Virginia Board Recommends Judge’s Suspension Until 2016 In Part Based On His Demeanor In Disciplinary Hearing

You may remember my previous posts on a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  See here (includes the video), here and here.  After one of the parties complained, the West Virginia Supreme Court announced that no charges would be filed against the judge, but later it was announced that the state's Judicial Investigation Commission would consider charges against the judge. 

The claim has now been decided and the Commission has ruled the judge shoudl be suspended for the rest of his term - until 2016 - at least in part because of his attitude toward the complainants during the proceedings.

Professor Jonathan Turley, who has been following the case closely in his blog since the beginning, has a comment on the decision here.  He argues that he is "a bit uncomfortable with crossed arms and a glare being any basis for a recommendation, but demeanor is a classic factor in evaluating a witness or an accused party." 

The judge's attitude during the hearing was not the only basis for discipline, though.  The Commission also found that he "routinely engaged in injudicious conduct and “demonstrated a preference for using threats, intimidation, profanity and shouting rather than the tools available to judges, including civil and criminal contempt, to deal with admittedly difficult litigants.”

California judge reprimanded for comments about rape

USA Today is reporting that a Southern California judge has been admonished for saying a rape victim "didn't put up a fight" during her assault and that if someone doesn't want sexual intercourse, the body "will not permit that to happen."

The California Commission on Judicial Performance voted 10-0 to impose a public admonishment saying Superior Court Judge Derek Johnson's comments were inappropriate and a breach of judicial ethics.

"In the commission's view, the judge's remarks reflected outdated, biased and insensitive views about sexual assault victims who do not 'put up a fight.' Such comments cannot help but diminish public confidence and trust in the impartiality of the judiciary," wrote Lawrence J. Simi, the commission's chairman.

You can find the full story here.  Atlantic Wire has more on the story here

UPDATE 12/14/12:   Prof. Jonathan Turley comments on the story here.

Wednesday, December 12, 2012

Professional Responsibility Essay Contest ($5,000 prize and more)

Law students looking for a challenge and an opportunity to earn $5,000 and a trip to New Orleans should consider entering the Levit Essay Contest on Lawyers' Professional Liability.  This is an annual competition that encourages original and innovative research and writing in the area of legal malpractice law, professional liability insurance and loss prevention.

To enter you must prepare an essay addressing the issues raised by the contest hypothetical.  This year's hypothetical involves questions about a law firm’s potential malpractice exposure when it relied upon a third-party vendor to provide document review services for a client, which ultimately resulted in the release of privileged documents.  You can find the hypo here.  You can also read the hypos and winning answers for the last few years here.

The author of the winning entry will win a cash award of $5,000 and an all expense paid trip to the Spring 2013 National Legal Malpractice Conference in New Orleans, LA, on April 24–26, 2013.

Online entries must be submitted by 11:59 PM CST on February 22, 2013.  Mailed entries must be postmarked by February 22, 2013.

The contest is open to Young Lawyers Division or Law Student Division members of the ABA, in good standing as of February 22, 2013. Go here for more information.

New Mexico rejects screening as a way to avoid conflict when a lawyer joins a new firm

In an opinion released last week, the Supreme Court of New Mexico has interpreted the state rule on imputation of conflicts of interest to hold that a firm may not represent a client if a new lawyer on the firm had played a substantial role in representing an interest adverse to the client in the lawyer's former firm.  If the lawyer played a substantial role, the firm would be disqualified automatically.  Screening, which is now accepted in the ABA Model Rules as an alternative to avoid this type of conflict, is not an option in New Mexico.  The case is called Mercer, LLC. v. Reynolds and it is available here

Thanks to the Legal Profession blog for the link.

Thursday, December 6, 2012

Comment on whether sentencing a defendant to go to church is proper under First Amendment analysis

I have commented before on the practice of some judges of imposing unorthodox, unusual or "creative" punishment, in lieu of applying the law, including the recent case where a judge sentenced a young man to going to church.  See here.   On the same topic but from a different perspective, here is a link to an article in the First Amendment Center arguing that sentencing someone to go to church violates the First Amendment.