NY City Bar Association recommends allowing non-lawyers to practice law under certain circumstances

Citing the  “justice gap” that leaves more than 2.3 million low-income New Yorkers each year to navigate the civil justice system on their own, the New York City Bar Association Committee on Professional Responsibility has issued a report recommending that non-lawyers be allowed to practice, with some limitations, as “Courtroom Aides” and “Legal Technicians.”  You can read more about the story here and here (which includes a link to the report itself).

Debate about the Commission 20/20's work

Professor James E. Moliterno (Washington & Lee) has published "Ethics 20/20's Successfully Achieved its Mission: It 'Protected, Preserved, and Maintained'" (Here), in which he comments and criticizes on the efforts of the Commission whose work resulted in the most recent wave of amendments to the Model Rules of Professional Conduct.  Over at the Legal Ethics Forum, the chief reporter for the commission and another member of the commission debate with Moliterno about his article.

What do you think should be the proper sanction for this conduct?

I am curious to see what you think should be the appropriate sanction give the following facts (which are taken from an actual case recently decided in Kentucky).

A client pays an attorney $50 to write a letter.  The lawyer takes the money and tells the client he will get it done and call him back.  The attorney does nothing.  The client tries multiple times to reach the lawyer but the lawyer does not call him back.  The client complains to Bar Counsel.  Bar Counsel calls the lawyer and lawyer says he inadvertently overlooked the matter.  (There is no explanation as to how he inadvertently also failed to call the client back after multiple requests.)  Lawyer promises Bar Counsel that he will do the work and get in touch with client. The lawyer then does nothing, doesn't contact the client and keeps the money.  The client tries to contact the lawyer; the lawyer does not reply.  Bar Counsel calls the lawyer; lawyer does not call back.

Bar Counsel then files a formal complaint and sends it to the lawyer.  The lawyer signs for it when delivered.  Lawyer does not reply to the complaint; does not reply to a second letter reminding him to reply to the complaint.  The complaint was processed and the charges entered.  The attorney was notified, but, again, did not reply or do anything about it.

After all that, a 20 member board found the attorney in violation of at least 4 rules (20 to 0 vote). 

Now, here is the question:  what is the best way to handle this type of conduct?

The Court issued a 30 day suspension.

I understand that, given that the attorney did not participate in the proceeding, we can't determine the reason for his conduct (Is he simply disorganized or is he incompetent?  Is he unfit to practice or just negligent?  Is he disabled in some way?).

I understand that without more information, a stronger sanction may be unfair.  We really can't determine if maybe the attorney should not be allowed to practice...  But what is the alternative?  If nothing is done about this, lawyers could avoid facing severe consequences for their conduct by simply blowing off the process.

If I had been in a position to decide this case I would have imposed a much harsher sanction.  The attorney clearly knew what he was doing was wrong.  He had been told by Bar Counsel.  He committed to correct the initial mistake but decided not to.  He clearly knew a disciplinary process against him was under way.  I would have interpreted his conduct as either so incompetent that it raised doubts as to his ability to practice or as evidence that he simply did not care - did not care about his client, about doing his job, about acting professionally or ethically, and about the process.  Either way, my conclusion would have been that he needed to be punished severely.  And if I were Bar Counsel, I'd check to make sure the attorney is not practicing during his suspension.

California follows New York in proposing mandatory pro bono for law students as pre-requisite for admission to the bar but not for attorneys

A task force of the State Bar of California has recommended that new attorneys be required to complete at 50 hours of pro bono service before they are admitted to practice. (Story in the National Law Journal, via Legal Ethics Forum).  This idea follows similar proposals in New York and New Jersey about which I have written several  times.  I can't say I am surprised by the proposal since it probably means well, but I am still not convinced it is a good idea.  Although some liked the idea in NY, most of the commentary I saw was negative.  For my previous comments (and lots of links) on this debate go here, here, here, here and here.

How not to practice law: fail to file your clients' briefs when ordered by the court and then fail to appear to the disciplinary hearing to explain your actions

Here is a story about an attorney who was reprimanded by the Supreme Court of West Virginia for "lapses in the representation of clients" including the fact that he failed to file appellate briefs in time in certain cases.  It did not help his cause that he did not show up to the disciplinary hearing because he mishandled his calendar.  So, he apparently he was just a good as handling his clients' matters as he was at handling his own.  I guess the attorney was  model of consistency.  You have to give him that. The case is Lawyer Disciplinary Board v Grindo.

Reminder: Google Reader will be going out of business soon

If you follow blogs as much as I do, you probably know by now that Google Reader will be shut down at the end of the month. If you are looking for a new way to keep up with your favorite blogs I recommend you take a look at Feedly which is very similar to Reader and, so far, has been working very well for me.  I hope it will continue to work well after Reader goes away.  For those of you who want to keep up with this blog in particular (and I hope that's all of you), the other alternative, of course, is to subscribe by e-mail, which you can do here by signing up on the lower right hand side of the blog.  Doing this will not inundate your inbox.  You will get one message a day and only if there is new content added to the blog. 

Should an attorney be disciplined for criticizing a judge?

Model Rule 8.2 states that a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth concerning the qualifications or integrity of a judge.  The comment to the rule, on the other hand, encourages attorneys to express candid and honest opinions because it contributes to improving the administration of justice.

A new case, pending in Indiana provides an interesting venue for the discussion of the issues raised by the rule.  In this case, an attorney has been charged with a violation of the rule for expressing his opinion about a certain judge in an e-mail he wrote to another attorney.

I am not familiar with all the details of the case, but from the little information I have gathered it seems to me there are several problems with the state's attempt to discipline the lawyer.

The rule's approach is obviously taken from the approach developed to deal with First Amendment concerns in defamation cases.  And one of the most important principles in defamation law is that the statements at issue have to be statements of fact.  Here the attorney's comments were clearly opinion. Imposing liability  (or in this case discipline) for expressing opinions raises serious constitutional concerns.  See for example, State v Semaan, 508 SW2d 429 (Tex App 1974) and Justices of Appellate Division v. Erdman, 301 NE2d 426 (1973) (isolated instances of vulgar or insulting disrespect for judges are not subject to professional discipline).  Unfortunately, there are cases out there that have held differently, though.

The lawyer who wrote the email filed a counterclaim against the disciplinary authorities arguing that the case against him violates his First Amendment right to free speech and that he’s being targeted.  I don't know if he is being targeted but I do think the speech is protected.

Indiana University School of Law associate professor Margaret Tarkington has argued that the vast majority of states interpret rule 8.2 to mean something very different than what it actually says and that the interpretation is probably unconstitutional.

You can read more about the case here. It will be interesting to see how the case develops.  I hope it eventually results in protecting the first amendment right to express our opinion about judges and the judicial system.

Can an attorney waive a criminal defendant's right to a public trial without consulting the client?

Regulatory agencies and courts have often had trouble defining exactly how the authority between an attorney and her client should be allocated.  It is often said that the lawyer can make decisions as to tactics while the client has the right to make decisions that relate to the objectives of the representation.  This language is derived from Model Rule 1.2, which in one way or another serves as the model for most jurisdictions, which states that a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. 

As the comment to the rule explains, however, even though sometimes a lawyer and a client disagree about the means to be used to accomplish the client’s objectives, the rule does not prescribe how such disagreements are to be resolved.  Thus, lawyers are left to interpret the rule as best as they can under the circumstances.  This is not always easy given that sometimes what can be argued to be a tactical decision can affect a fundamental right of the client.

The rule does, however, set some limits to the lawyers authority to make decisions for the client.  For example, in a criminal case a lawyer can’t take away from the client the right to decide whether to agree to a plea offer, whether to testify and whether to waive jury trial.

Thus, one would think that if the decision involves one of these fundamental rights, the attorney must consult the client (at least) and that it is the client who has the right to make the final decision.

Thanks to a recent decision of the Supreme Court of Massachusetts, however, even this is not as clear anymore - at least in that jurisdiction.

Earlier this year, in Commonwealth v. Lavoie, 981 N.E.2d 192 (Mass. 2013), the court was asked to consider whether a Superior Court judge properly denied a criminal defendant’s motion for a new trial, in which he claimed that his right to a public trial was violated when his counsel failed to object to the exclusion of family members from the court room during jury selection. The trial judge denied the defendant’s motion, but the Appeals Court concluded that the defendant’s right to a public trial was violated and reversed.

On appeal, the state supreme court reversed holding that counsel may waive a defendant’s right to a public trial during jury selection without his client’s express consent because the decision was tactical.

In my opinion, this decision is wrong.  It contradicts the fundamental basis of the allocation of authority within the attorney-client relationship and illustrates the difficulty of explaining the proper allocation in terms of “tactics", "means" or "objectives.”

The facts of the case are relatively simple.  When the jury selection for the defendant’s trial began, court officers excluded his family from the court room. The defendant’s attorney did not object.  After his conviction, the defendant moved for a new trial, arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when the court officers closed the courtroom to the public during the voir dire.

The judge, who was not aware that the officers had excluded the defendant’s family until he filed his motion for a new trial, conducted an evidentiary hearing during which the defendant’s lawyer testified that “it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with court officers who he perceived engaged in a difficult job.” The attorney also explained that he thought the defendant’s family members “could present a distraction.”

After the hearing, the judge concluded that the two-day closure of the court room violated the defendant’s Sixth Amendment rights, but denied the motion for a new trial because “there was no miscarriage of justice” because, among other things, “defense counsel’s failure to object to the closure was a reasonable tactical decision.”

At this point, I wonder how it is that it can be a tactical decision to make a decision that belongs to the client and that is so fundamental that taking it away from the client results in a violation of the client’s constitutional rights.

But, let’s continue.

On appeal from the judge’s ruling, a divided Appeals Court reversed concluding that the defendant’s right to a public trial had been violated.  (As I hinted above, I would think that is the correct view on this.)

However, the story does not end there. The case then went to the state supreme court, which agreed with the trial judge.  The opinion is available here.

The court clearly understood that the decision in the case depended on an understanding of the allocation of authority to make decisions within the attorney-client relationship.  The court explained that an attorney is best equipped to make choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance because they depend upon “tactical considerations.”  But, as the court explains, in order to preserve the basic rights of the accused, when it comes to fundamental rights, it is the defendant who has the right decide to waive his or her rights.

Once the court cites numerous US Supreme Court cases to explain that a criminal defendant has a constitutional right to a public trial, which includes the jury selection process one would think it would conclude the decision whether to waive the constitutional right belonged to the client.  Yet, it did not.  It ruled that the attorney could make the decision without consulting the client because it was tactical.

What I don’t understand is how the decision to waive a constitutional right of a client without consulting the client can ever be considered to be a tactical decision.  How is it that the lawyer can deprive the client of the opportunity to make a choice that the constitution (and the rules of professional conduct) clearly say belongs to the client?

Simply stated, if it is clear that it is the client who has the right to make the decision, the court should not say the lawyer can make the decision for the client.  Otherwise, an attorney could always claim the decision was tactical.  Isn’t it tactical to decide whether to plead guilty to avoid a trial?  If so, then the attorney could decide for the client.  Isn’t it a tactical decision to waive the right to a jury trial?  Then why not allow the attorney to decide for the client?

The decision to waive a public trial is no more tactical than the decision to waive a jury trial.  In both cases, the decision affects the client’s fundamental constitutional rights and, thus, the attorney should not be allowed to decide for the client without consultation. 

According to the court, an attorney can waive a client's constitutional right without consent if the attorney does so as part of a tactical decision.  In my opinion waiving a client's constitutional right should never be considered a tactical decision.  It is a decision that belongs to the client. 

How not to (start the) practice of law: fail to disclose information during the admission process

I have not updated the on-going "how not practice law" series in a while, so I thought I'd revive it by mentioning a topic I have written about before because it does not hurt to remind students and recent graduates about it: Failing to disclose information as part of the bar admission process can affect your chances even if what you fail to disclose would not have.

The most recent example comes from the Florida Supreme Court, which recently revoked the admission of an attorney for lack of candor in his application for bar admission. In that case, the candidate had passed the bar exam, but questions were raised in the character and fitness process. The court's opinion explains the obligation to update and supplement answers and underscores the crucial importance of absolute candor in the admission process, as the information that was not disclosed here would likely not have prevented the applicant from becoming a member of the Florida Bar.

Thanks to the Legal Profession blog for the information.

Prosecutorial misconduct reported in Zimmerman case

As reported in Legal Ethics in Motion and discussed in the Legal Ethics Forum, The Miami Herald reports that a former prosecutor has come forward with allegations that evidence of deleted text messages and photo’s retrieved from Traynon Martin’s cell phone has been withheld by the prosecution in the Zimmerman case, which has been set for trial on June 10th. The former prosecutor, Wesley White, has come forward citing his responsibility as an officer of the court to inform the court of any misconduct or potential misconduct occurring in the case. White, who is now in private practice, apparently recently learned about the information from the Fourth Judicial Circuit’s Information Technology Director. A hearing on the turning over of evidence has been scheduled by Judge Nelson for next week.