Friday, October 25, 2013

The "meet and greet" practice of law?

The "a public defender blog" has posted a story on the reality of practice of criminal defense in some courts.  In fact, this is (obviously) not an isolated incident -remember the story that the Miami public defender's office was rejecting cases because they did not have time to manage them?   In any case, the public defender story is about a case in which the defendant was assigned a public defender who met with the client for the first time the morning of his trial, which was going to be the attorney's first criminal trial in seven years. The attorney had about 12 hours to prepare for trial.  A public defender argues that a conviction under those circumstances violates the constitution.  And he has some strong words for the lawyer who claimed he was ready for the trial under those circumstances. You can read the full post here.

Lawyers Swarm to Ghost Blogging, But is it Ethical?

The Legal Talk Network has a 25 minute podcast on the issue of whether ghost blogging is ethical here (or here).

New case on the limits of proper argument

One of the topics I cover in my class is the notion of limits of proper argument.  I assign a series of cases that discuss whether it is proper for an attorney to cite the Bible in support of an argument when addressing the jury, or to ask the jury to "send a message" by reaching a certain verdict.  Now I have a new case to discuss the issue.  The Legal Profession Blog is reporting on a recent case called State of Montana v. Ugalde in which a dissenting judge would have reversed a conviction because of the prosecutor's closing argument. The case involved a prosecution related to injuries to an infant. At the end of the trial, the prosecutor began her closing argument with a first-person narrative from the perspective of the infant, relating the State's view of what happened as though the victim was testifying on her own behalf. During rebuttal, the prosecutor then told jurors that the infant was "speaking to you" and asked the jurors to "tell the victim that you heard him and that you find the defendant guilty. I agree with the dissenting judge. His view is consistent with the other cases on the subject. Aside from being a little creepy, the prosecutor's approach was improper. Essentially, she testified for the victim who was not subject to cross examination, she played to the emotions of the jury, and she asked the jurors to "send a message." Here is what the judge wrote:
. . . I believe the prosecutor's channeling the infant-victim in closing arguments denied Ugalde her constitutional right to a fair trial. The channeling was neither brief nor harmless. It was calculated to play on the emotions and sympathy of the jury. I.N. spoke to the jurors through Pierce, describing the assault, the surgeries, how his life is no longer the same, that he no longer can tell his mother he loved her, and that he can only speak three words. Pierce asserted that “[I.N.] was the only witness, besides the Defendant, to tell you what happened to him on June 11th of 2008 .” Pierce asked the jurors to tell I.N. that they heard him and to tell Ugalde that they know what happened that day. The evidence presented at trial concerning the impact upon the eight-month-old victim and the cause of his injuries was overwhelming. But that does not justify our overlooking a prosecutor's improper closing argument that was calculated to appeal to the jury's emotions, passion, and sympathy. This tactic undermined the fundamental fairness of the trial. I therefore would reverse for plain error and remand for a new trial.

Wednesday, October 9, 2013

Extra!: U.S. Attorney agrees to vacate conviction after thrashing by Ninth Circuit for prosecutor's misconduct

Last Saturday I posted a video in which the Court of Appeals for the Ninth Circuit severely criticized the conduct of a district attorney who based an argument on facts not in evidence.  At the end of the oral argument (by a different prosecutor) one of the judges suggested that the prosecutor go back home and watch the tape of the argument with the prosecutor in question and simply confess to the conduct and stop trying to justify it or explain it or claim it was harmless error.

Well, apparently they did just that, as Seeking Justice reports, "no doubt to avoid a scathing decision from the Court."

Here’s the government’s four paragraph motion to vacate the conviction and remand the case. Seeking Justice summarizes it as simply saying "We’ve all reviewed it, our prosecutor was wrong, and we will use the video to teach prosecutors the bounds of proper closing argument."

That is a good thing, I guess, and hopefully they will take it seriously in the future. 

More comments on prosecutorial misconduct: why do some courts protect the anonymity of prosecutors?

Here is a link to a recent article in the Huffington Post that discusses the fact that the names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct.

There's no formal rule precluding the publication of a prosecutor's name in an opinion.  Apparently, the practice is rooted in what some call "professional courtesy."  But I don't see why a prosecutor should deserve professional courtesy if they are found to have engaged in misconduct, particularly when other lawyers are not granted the same courtesy in published disciplinary decisions.   I just don't think there's a legitimate argument as to why prosecutors should get more protection from allegations of wrongdoing than other attorneys.

Thanks to the Legal Ethics Forum for the link to the article.

Book (p)review: Essential Qualities of The Professional Lawyer

Back in 2008 I wrote an article for a symposium on professionalism in which I tried to reduce the notion of professionalism to some basic elements and values.  It was a short article and I did not have the chance to expand on my ideas too much.  Plus, I wrote the article in Spanish...

But, don't worry!  If you are interested in this topic, The ABA Center for Professional Responsibility has published a new book called Essential Qualities of the Professional Lawyer, which takes on the same task I wrote about, and more.  Since I have not read all the essays yet, I can't really write a review of the book. So think of this as a pre-review (or is that a preview?).

The book is a collection of essays by many different authors on many different subjects, all based on the same underlying theme:  that there are some core tools that lawyers need to become authentic and successful professionals.  The topics covered include professionalism values, civility, proper use of computers and technology, merging professional and personal values, gender and bias issues, lawyering skills and professional conduct.

The essays vary in length and coverage and they are not meant to be read in any specific order.  In fact, I would suggest that you should not read the book from beginning to end as if you were reading a novel.  I would suggest you read a chapter or two, put the book down and come back to it some time later.  Take your time to read and think about the different issues over time.  I look forward to reading it this way.  It may take me a long time to finish, but there is no need to rush it.  I feel I may get more out of it that way.

Vote for innovative ideas at the Innovating Forum

Are you interested in new ideas on how to change and improve our justice system?  If so, take a look at the Innovating Justice Forum  of the Hague Institute for Internationalisation of Law.

One of those ideas comes from my friend and colleague David Wexler and I encourage you to take a look at it.  David's work originated the concept of "therapeutic jurisprudence" (or "TJ") which argues for the need for a new perspective to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.  Here is a short video in which he explains the concept.

Recently, David has been working with a US judge (Michael Jones ) and a Victoria, Australia magistrate (Pauline Spencer) on a new therapeutic jurisprudence project called "Integrating the Healing Approach to the Criminal Law." 

The project has been nominated by the Hague Institute for Internationalisation of Law Innovating Justice forum under the "Innovative Idea" category and you can read about and vote for it here

Monday, October 7, 2013

Illinois Supreme Court finds "advanced payment retainers" can't be used in divorce case

Back in 2007, in a case called Dowling v. Chicago Options Associates, the Illinois Supreme Court recognized something it called an “advance payment retainer” which would allow a client to give a lawyer money the client wanted to keep away from the client’s creditors. The idea behind the concept was to protect a client’s ability to pay for legal representation, but as applied in that particular case and as explained by the court, the concept makes no sense and inevitably results in a violation of other rules of professional conduct.

Surprisingly, however, even though it makes little sense, the concept of the advanced payment retainer had not been challenged before the court until this year. This new case (In re Marriage of Earlywine) involved a divorce where the husband asked his lawyer to keep a certain amount of money so that the husband would not have to contribute to pay for the wife’s legal representation as determined by a specific statute. The statute was created to level the playing field in divorce cases by requiring a spouse with access to independent funds to help the other spouse pay for representation.

In Earlywine, the husband did not want to share his funds with his wife who was indigent. In an attempt to prevent her from getting access to the money, the husband gave the money to his attorney as an advanced payment retainer.

The court did not overrule Dowling, however, and simply ruled that the use of an advance payment retainer to protect a client’s funds from the obligation to share under the domestic relations act undermines the purpose of the statute in leveling the playing field which would render the act a nullity. The court found that it was “clear from the attorney-client agreement that the advance payment retainer in this case was set up specifically to circumvent the “leveling of the playing field” rules set forth in the Act. To allow attorney fees to be shielded in this manner would directly undermine the policies set forth above and would strip the statute of its power. If we were to accept [the husband’s] argument, an economically advantaged spouse could obtain an unfair advantage in any dissolution case simply by stockpiling funds in an advance payment retainer held by his or her attorney.” 

This makes sense to me and I think the decision reached the correct result. You can read the full opinion here.  What the court failed to accept, however, is that the same thing could have been said about the conduct of the client in Dowling. Although the court reached the correct result in this case, it should have taken the chance to get rid of the problem it created with its decision in Dowling.

As it is, an advanced payment retainer refers to money that belongs to the attorney, even though it is not actually earned until the work is performed. How it can be earned and not earned at the same time is a mystery. And if it is owned by the attorney, but not earned and thus owed to the client if not used, how can the attorney deposit it in either the general account or the trust account without commingling?

Saturday, October 5, 2013

When can a lawyer be sanctioned for criticism of judges?

The Indiana Disciplinary Commission recently recommended a one year suspension without automatic reinstatement for an attorney based on the content of private communications criticizing a judge. The case is now before the state's supreme court which should decide the sanction would be an unconstitutional interference with the attorney's freedom of speech. For more details on the case, go here.

In this case, the commission recommended the sanction for emails that the attorney sent to another attorney criticizing a judge for mishandling a case. Among other things, the attorney stated that that the judge “should be turned in to the disciplinary commission for how he handled this case.”

The commission apparently told the attorney he could forgo the possible disciplinary proceeding if he apologized for the comment but the attorney refused and decided to fight the charge instead. I applaud him for this decision because the commission is clearly acting unconstitutionally here. The attorney has the right to express his opinion about the judge and if that statement is what the commission is basing its position on, it does not have any valid basis for imposing sanctions. I hope the Indiana Supreme Court does the right thing here and sends the commission (and the judge) packing.

Ironically, apparently the commission has argued as an aggravating factor that the attorney "believes he is superior to the courts and the law.” Yet, it is the commission which apparently believes its power is superior to the attorney's first amendment protected right to express his opinion.

This is not a case where the attorney made assertions of fact about the judge (like the recently reported case where it was alleged that an attorney argued a judge was a pedophile).  Here the attorney expressed his opinion about the competence of the judge.  This type of expression is protected speech.

Governor signs bill that would allow undocumented alien to be admitted to the bar in California

I previously reported that the California legislature approved a bill that would allow undocumented aliens to join the California bar (see here and go here for more on the case that prompted the bill). Now comes news that Governor Jerry Brown has signed the bill. Go to At the Lectern for more information. Thanks to the Legal Ethics Forum for the link.

Ninth Circuit Court of Appeals on how to handle prosecutorial misconduct

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. Often courts do not do enough to discourage it or to impose sanctions for it. Luckily, there is one court that is doing its part.  This week I saw two different stories on prosecutorial misconduct, both from the Court of Appeals for the Ninth Circuit.

The first one involved an oral argument (you can see the video appears below).  Here the court was reviewing a case in which the court denied the defendant a chance to reply to an argument by the DA in which the DA made arguments based on facts not in evidence.  The oral argument on behalf of the government is worth watching.  The judges who participated were clearly bothered by the prosecutor's conduct and it seems pretty clear the conviction will be reversed because of it.  The implication is that the prosecutor purposely decided to wait until rebuttal to make a comment based on facts not in evidence because the defendant would not be able to reply to the comment. The court then denied the defendant three minutes for a rebuttal to the prosecutor's statement giving rise to the question on appeal.

The government's argument begins at the 26 minute mark. The argument starts poorly for the government and gets worse.  At the 44 minute mark, one of the judges reduces the issue clearly to the bottom line: trials should be fair and prosecutorial misconduct can't be tolerated. Interestingly, he then goes on to talk about some reasons why there is too much prosecutorial misconduct: too much prosecutorial discretion. Now, that's a different issue we could talk about another day!  Take a look at the specific comment starting at minute 44 of the video (or here).

UPDATE:  A few days later the US Attorneys Office filed a motion to vacate the conviction.  Go here for the update.

Keep reading below for news on the second story I mentioned.

The second story I saw this week about of the Ninth Circuit was this:  "In another sign that the Ninth Circuit is leading the way in holding prosecutors to their Constitutional obligations while insuring the Constitutional rights of defendants, a panel earlier this month, in Dow v. Virga, No. 11-17678 (Sept. 5 2013 9th Cir.), granted habeas relief where the California prosecutor, Deputy District Attorney Jennifer Ow of San Mateo County, knowingly elicited and then failed to correct false testimon..."  For more commentary see Seeking Justice.  For a copy of the opinion go here.