Sunday, August 25, 2013

Huffington Post article about lack of accountability for prosecutorial misconduct

The Huffington Post has published a story on an issue I have written about many times: the lack of accountability for prosecutorial misconduct. The article is available here. In addition, here is an interview with the author or the article. Take a look at about the 5 minute mark, where the interviewer literally laughs at the notion of "self regulation" of the profession.

Monday, August 19, 2013

Article on issues related to social media and the practice of law

Here is a link to a recent article on issues related to social media and the practice of law.  Among other things, it comments on an ethics opinion by the New York County Bar Ethics Committee I wrote about back in July (see here). 

Thanks to the Legal Ethics Forum for the link.

Friday, August 16, 2013

You can now get the posts via RSS

For those of you who used to rely on Google Reader, or those of you who prefer to get notices of the posts as they are posted throughout the day, you can now subscribe using Feedly (for PC browsers and mobile devices) or Newsify (for mobile devices).  I am sure there are other options, but those are the ones I use to follow the blogs I read.  They both work well.  Simply add the blog's address ( to your subscriptions and you should be able to follow the blog.  However, I do suggest you keep the e-mail notice system just in case...

Illinois adopts a "civil Gideon" pilot program

The Chicago Daily Law Bulletin is reporting today that Gov. Patrick J. Quinn has signed legislation that will make Illinois the second state in the nation to offer court-based legal counsel in some civil cases. The measure goes into effect immediately although the program is only in a pilot stage. For now, the program is technically in its pilot phase, so court-provided civil attorneys will be limited to one circuit court in each of the five appellate districts.

Thursday, August 15, 2013

North Dakota Supreme Court opinion on non refundable "minimum fees"

I have written many times before on the concept of flat fees and whether they can be non refundable. See here, here and here, for example. In one of those posts I summarized what appeared to be the state of the law (at least in one jurisdiction) this way: "A flat fee can be non-refundable as long as there is nothing to refund; but if there is something to refund, it must be, unless there is a good reason not to. Easy." Sounds confusing? It is confusing! I understand the concern behind some of the decisions but the decisions have not been very clear.

Now comes the North Dakota Supreme Court with a new decision on the subject in a case called In re Hoffman, N.D., No. 20120290, 7/23/13. It explains some things well but for others we are still left with same of the problems we have seen before. Let's take it step by step.

In this case, the lawyer charged a $30,000 non-refundable “minimum fee” for his work in a criminal matter. After working on the case for about 26 billable hours he was discharged and then refused to refund any part of the fee. Bar counsel argued that the fee was “unreasonable”, that the lawyer violated the rules by putting the fees into an operating account rather than a client's trust account, and that he violated the rules by not providing a refund.

The court disagreed with the first two allegations but agreed with the last one.

The court found that the fee was not per se unreasonable because the jurisdiction “has not yet adopted a rule barring the use of non-refundable fee agreements.”

As to the second allegation, the court also held the law in the jurisdiction does not prevent a lawyer from negotiating that advance fees will be the lawyer's property upon payment.

So far so good. But then, citing sources from different jurisdictions, the court agrees that “Even if advance fees are by agreement not being held in trust for a client, they may still be subject to refund if later determined not to have been unearned.”

This is what I don't understand. If it is agreed that the fee is earned upon payment, then how can it be considered to be unearned? (If on the other hand, was was agreed was that an unearned fee will be deposited in the lawyer's operating account, the court is saying that a lawyer and client can agree to allow the lawyer to commingle funds.)

So, in sum, the court says the fee is not unreasonable and the lawyer is free to negotiate that it is earned, only that the client can later claim it wasn't earned. That does not make sense to me.
The court is concerned with the fact that an attorney could end up keeping a huge fee for little work and that a client may be tied to an attorney they would rather fire. As the court says "the retainer in circumstances of termination of representation may represent a windfall".

All that is fine, but if the court wants the fee to be refundable, then it should hold that fees can't be non refundable. Period. Instead, what the court ended up saying is that fees can be non refundable and earned, unless the client wants a refund or thinks they were not earned. And that is confusing, to say the least.

Wednesday, August 14, 2013

More criticism of the DC Bar Counsel decision to recommend an admonition for prosecutor with history of repeated violations

I recently posted a comment critical of a decision from Washington DC in which the Office of Bar Counsel recommended only an admonition for a federal prosecutor with a “history of repeated, blatant Brady violations” (as determined by a judge's findings) and who was found to have made false statements to a judge.   See here.  Seeking Justice was also critical of the decision and the Legal Profession blog has a number of posts critical of the DC disciplinary system. Now Jonathan Turley has added his voice to the criticism.  His comments starts as follows:  "It has long been maintained by defense counsel that the Justice Department not only protected unethical prosecutors but has a culture encouraging unethical conduct in litigation. This problem is magnified by the tendency of courts and bar committees to look the other way in the face of violations or to confine sanctions to admonitions or verbal criticism"  You can read the full comment here.

Wisconsin Supreme Court finds ethical obligation to disclose exculpatory evidence is not broader than the obligation under Brady v. Maryland

The Wisconsin Supreme Court recently held in a disciplinary proceeding (In re Riek) that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland.  

The accepted interpretation of the ABA Model Rules, and an ABA Formal Opinion, take the view that the ethical obligation is broader.  See  ABA Formal Ethics Op. 09-454.  But not all jurisdictions agree.  For example, the Ohio Supreme Court rejected the ABA's position in Disciplinary Counsel v. Kellogg-Martin, 923 N.E.2d 125 (Ohio 2010), while North Dakota has embraced it (In re Feland, 820 N.W.2d 672 (N.D. 2012)).  Louisiana and Colorado have also ruled on the subject before the ABA's Opinion in In re Jordan, 913 So. 2d 775 (La. 2005 and In re Attorney C, 47 P.3d 1167 (Colo. 2002).

Also, the professional responsibility rules in at least two jurisdictions state, or can be fairly understood to say, that a prosecutors' duty is not broader under the rules than under Brady.  See D.C. R. Prof'l Conduct 3.8 cmt. 1 (2012) and  N.C. R. Prof'l Conduct 3.8(d) (2012).
Most jurisdictions, however, have yet to decide the issue directly.  It will be interesting to see the case law that develops.

Thanks to the ABA/BNA Laywers' Manual on Professional Conduct for the update and link.

Friday, August 9, 2013

Should the US Supreme Court adopt an ethics code?

A group of Democratic lawmakers has reintroduced a bill that would require Supreme Court justices to comply with the same ethics rules that apply to other federal judges.  For more details (and more links) go to the ABA Journal, the Blog of Legal Times and the Huffington Post.

Here is a link to an op-ed at Politico in praise of the bill.  For some critical comments go to the Legal Ethics Forum.

NY Times article on character and fitness inquiries re mental health

Here is a link to a recent New York Times article on whether it is proper for character and fitness committees to ask about candidates' mental health history.

Thanks to Jourdan Levy for the link!

Washington DC Office of Bar Counsel again fails to impose meaningful discipline

A few days ago, I commented on a case in Washington DC where the Office of Bar Counsel's recommendation of censure for prosecutorial misconduct was rejected by the Disciplinary Board which recommended a stiffer sentence.  I have read elsewhere that DC has a reputation for not imposing harsh discipline and now there is news of another case that supports this view.

The new case, reported in the Blog of the Legal Times, involves a federal prosecutor with a “history of repeated, blatant Brady violations” (as determined by a judge's findings) and who was found to have made false statements to a judge.  Yet, despite the finding of the history of violations and the most recent incident, the Office of Bar Counsel recommended only a formal admonition.

Needless to say, as I have argued so many times before, this is not the way to discourage prosecutorial misconduct.

Seeking Justice has a comment on the case here.

Monday, August 5, 2013

Death Row inmate's lawyers move to disqualify entire Attorney General's office from representing the state in appeal

Last month, the lawyers for New Hampshire’s only inmate on death row filed a motion to disqualify the entire Attorney General’s office from handling the state's reply to his appeal after the office hired a key member of inmate's defense team.  They argued that former public defender Lisa Wolford, who worked full time on the case in 2009, took at least one confidential document with her when she joined the Attorney General’s office last summer as an appellate lawyer.  If this allegation is proven and the AG's office did not have a screen established before Ms.  Wolford joined the office, it is possible the state will have to find someone else to represent its position.  But, I have not seen any reports on the outcome of the motion.  The Boston Globe has the story here.

Thanks to George Conk for the link.

Washington DC's notion of moral turpitude apparently does not include holding a minor as a sex slave

If you are a long time reader of this blog, you know that I have asked before for an explanation as to the notion of moral turpitude in Washington DC.  Today I read about a new particularly disturbing case that raises the question again.  In the past, I commented on a case where it was determined that the conduct of a lawyer in lying, cheating and stealing money was not considered to be moral turpitude because it was not "dishonesty with intent for personal gain."  See here.  I could not understand how it could not be, but that was that.  Then there was the case where it was found that tampering with a witness was considered moral turpitude per se which resulted in disbarment (here).  OK.  I have not problem with disbarring an attorney that engages in that conduct, but is that really moral turpitude?

Today, however, the Legal Profession blog published a note about a case in which an attorney who was convicted of felony traveling for the purpose of engaging in sex with a minor was found not have engaged in conduct involving moral turpitude. According to an account of the case, the attorney had made a 12-year-old boy his sex slave for six years....he will spend the next 15 years behind bars. And this is not "moral turpitude" per se?

The Legal Profession blog reports that the disciplinary board's lawyer members (except one recusal and one not participating) concluded that the conduct did not constitute moral turpitude per se, and therefore that there should be a hearing to determine if it was moral turpitude under the circumstances.

What a waste of resources!  Someone please explain to me under what circumstances it can possibly be thought that traveling abroad to engage in sex with a minor, bringing the minor back to the US and then holding him as a sex slave could NOT be conduct involving moral turpitude.

The Board should have held that this was moral turpitude per se and disbarred the attorney.  Period.

The only non lawyer members of the Board dissented.  Good for them.

The Legal Profession blog has the full story here.

Thursday, August 1, 2013

Iowa Supreme Court recognizes claim for emotional distress caused by attorney's malpractice

I have never understood why it is so difficult for courts to recognize claims for emotional distress in cases where the plaintiff does not suffer physical injuries. Is it really that difficult to believe that someone can suffer emotional distress due to someone's conduct absent a physical injury?   Assume an attorney's malpractice causes a client to lose his house, or custody of his children or to be separated from his children for years.  Is it really that difficult to believe that the attorney's negligence can cause emotional distress?

I don't think so.  As long as we recognize that emotional distress is a distinct type of injury that can result from negligent conduct, it is difficult to argue that a plaintiff should not have the right to bring a claim as long as he or she can support the elements of the cause of action.

Following this type of reasoning, the Iowa Supreme Court recently held that a couple from Ecuador may sue their attorney for emotional distress because his advice caused them to be separated from their children and grandchildren for a decade.  It’s the first time the state’s high court has allowed an attorney to be sued for emotional distress and punitive damages in a malpractice case.  Go here for more on the story.

Conviction reversed because of prosecutorial misconduct

The New Jersey Supreme Court has reversed a conviction because a state prosecutor's office violated its post-indictment discovery obligations when its investigator destroyed his notes of a two-hour pre-interview of a defendant.

Thanks to the Legal Profession blog for the link.

DC gets tough on prosecutors for misconduct

I have complained repeatedly on this blog about how regulatory agencies and courts do not take prosecutorial misconduct seriously enough; about how prosecutors are rarely disciplined, etc.

Finally, I have a chance to report a case where the exact opposite is true.  The Legal Profession blog is reporting that the District of Columbia Board on Professional Responsibility has recommended a suspension of 30 days of an Assistant United States Attorney who had failed to provide a witness statement to the defense.

The reason the case is noteworthy is that Bar Counsel had recommended a public censure.  The board noted that cases where the board imposes a sanction that exceeds that sought by Bar Counsel "should be the exception, not the norm" but it found this to be such a case because, according to the board, the prosecutor's violation of Rule 3.8(e) was blatant. He failed to disclose exculpatory information that was obviously material. The board also stated that a suspension will serve as a more effective deterrent than the public censure recommended by Bar Counsel and the Hearing Committee and is an appropriate measure of the seriousness of Respondent's misconduct. I think 30 days is still too light, but I am certainly happy to see that the Board rejected the ridiculous recommendation of the hearing committee and bar counsel. The case is in In re Andrew J. Kline, No. 11-BD- 007, and is available at this link.

Is this the beginning of a trend?  It is hard to say, but last year, the Court of Appeals disbarred a former prosecutor for Brady violations. Prior to that, public discipline had never been imposed in the District of Columbia for Brady-type misconduct.

Whatever it is, it is a good example for other jurisdictions to follow.  The Legal Ethics Forum has more on the story (and more links) here.  The Blog of the Legal Times has more (and links) here.

Alaska limits prosecutorial discretion to enter into plea bargaining in some cases

"A Public Defender" is reporting that Alaska has decided to limit prosecutorial discretion to negotiate plea agreements in certain types of cases.  Go here for the details.

Article criticizing decisions that found converstations within a firm regarding possible malpractice are privileged

Last month I reported that the Massachusets Supreme Court recently found that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  See here.  A few days later, Georgia reached the same result.  See here.   The Legal Ethics Forum had a debate  on the issue here and here.  Now, thanks again to the LEF, here is a link to an article by Richard Zitrin (professor at UC-Hastings) criticizing the decisions which he refers to as bad for clients who expect loyalty from the firms they employ.