Tuesday, November 26, 2013

Ethics lessons from fictional lawyers

Here is the link to an article on fictional lawyers, from movies and novels, and the ethical issues they faced.

Monday, November 25, 2013

Arizona adopts a revised version of Model Rule 3.8 rule on prosecutors duties

The newly adopted rule is available here.

Center for Prosecutor Integrity to create a registry of prosecutorial misconduct

The Center for Prosecutor Integrity has just issued this press release, announcing the the receipt of a grant to establish a Registry of Prosecutorial Misconduct.

A public defender's comments on prosecutor misconduct

A few minutes ago I posted a note on a recent case on prosecutorial misconduct.  I then found a comment on the case (and more general issues related to due process in our criminal justice system) over at A Public Defender's blog.  That post is available here.

Conviction reversed - but no sanctions imposed - for prosecutor's improper comments

The Legal Ethics Forum recently posted a link to a story in the Connecticut Law Tribune about a decision of the state's supreme court overturning a conviction because of a prosecutor's improper comments.  Specifically, the prosecutor claimed the prosecutor acted improperly by repeatedly asserting during her  closing argument that both the defendant and his lawyer were asking the jury to "condone child abuse," that the defendant's testimony was "coached," and that the defense strategy was a game of "smoke and mirrors."

The court's opinion is available here.  The court's analysis on the question of the improper comments starts on page 11.

This is an interesting question.  I am not too bothered by the "smoke and mirrors" comment.  Even though it is clear that a prosecutor is not allowed to express his or her opinion on the credibility of a witnesses, I think this comment is within the acceptable limits of rhetoric.  It is just a way to say that the defendant's evidence is weak and that the juror's should not be confused by it. 

The comment on "coached" testimony is a closer call because it does come close to being an opinion on the credibility of the witness and suggests unethical conduct of the defense attorney.  It does sound like the prosecutor is saying "I believe the witness was not telling the truth."  However, I am not sure the comment was quite that clear.  Obviously "coached" is a term that has negative connotations but it seems to me it is just a comment on the demeanor of the witness and the general credibility of the testimony.  If that was all there was, I am not sure I would have overturned the conviction.

The first comment (the one about condoning child abuse), though, is of a different nature.  First of all, although it sounds like a statement of fact, it also was really a statement of opinion, and that opinion was questionable.  Second, it was probably not based on the evidence.  Third, it was used to stir emotions,  And, lastly, it was a cheap shot at the defendant's lawyer.

Based on this one comment, I agree the conviction should have been reversed. The court's analysis is very good.  The only thing I would add is that I think the court should have imposed sanctions on the prosecutor.  

Former Texas DA (now a judge) disbarred in case of wrongful conviction after failure to disclose exculpatory evidence

In March of 2012, the TV show 60 Minutes had a segment on the controversy over the conduct of a former Texas prosecutor who was accused of failing to disclose exculpatory evidence which resulted in the wrongful conviction of an innocent man. The innocent man spent about 25 years in prison until he was exonerated thanks to DNA evidence.  That evidence also disclosed the identity of the actual killer in the case.

I first reported on the case here (where you can also watch the full 60 minutes segment).  As the investigation on the case progressed, I reported later (here) that an investigating judge had found probable cause against the former prosecutor.  (There are more links to other articles on the case there too.)

Now the case is back in the news because it was recently reported (also here) that the prosecutor was sentenced to ten days in jail - yes, you read correctly; ten days!  The sentence is actually for contempt of court for lying during the investigation of the incident.

Fortunately, that was not the only punishment.  The judge has been disbarred and removed from the bench.  It is too bad it took so long to get to this point. 

Update 1/7/2014:  The Huffington Post has a short comment on the case here.

On the relationship between prosecutors and the police.

About a week ago we discussed in class how a prosecutor must perform three different roles in one.  Prosecutors are part of the law enforcement team, they are also lawyers who litigate cases and they are "ministers of justice" who are supposed to make sure the rights of the accused are not violated. 

Right on cue, the Prosecutor's Discretion blog has jut published a short interesting post on the relationship between prosecutors and the police.  It starts like this: 
There is a difficult dance that we prosecutors perform with the police. One would think that we are on the same team and that it would be easy to get along with those on our team. I see officers on a daily basis and ... I have great respect for the job that they do.

But it is a different job than mine. A police officer ... has great discretion in how to conduct an investigation and whether to arrest a person, write a ticket, or come to an equitable resolution. The prosecutor's job is to do justice, and with that we are vested with prosecutorial discretion  ...
You can read the full post here.

Thursday, November 14, 2013

How should you behave during court appearance

A few basic tips here.  My students will appreciate the first rule under "school rules."

Thursday, November 7, 2013

San Jose mercury news article on Stephen Glass oral argument

Earlier I posted the video of the oral argument in the Stephen Glass case and a link to the briefs in the case. My take on the oral argument was that it did not go well for Glass. Apparently, the San Jose Mercury News agrees with me, concluding that "The California Supreme Court on Wednesday showed no signs of sympathy regarding Glass' bid for a license to practice law." You can read the article here.

Thanks to the Legal Ethics Forum for the link.

Wednesday, November 6, 2013

Pennsylvania Supreme Court announces revisions to rules of professional conduct.

The Pennsylvania Supreme Court has announced revisions to its Rules of Professional Conduct.  The Legal Profession blog has more information here.

Briefs in the Stephen Glass case

Earlier tonight I posted the video of the oral argument in the Stephen Glass case.  Here is a link to an article where you can find the briefs filed in the case. 

Thanks to the Legal Ethics Forum for the link.

California Supreme Court oral argument on Stephen Glass admission petition case

Earlier today, the California Supreme Court heard oral arguments on the petition for admission of Stephen Glass. The video appears below.

Stephen Glass was once thought of as one of “the most sought-after young reporter in the nation’s capital.” He was later exposed for having falsified many of the stories he wrote for important national magazines including some he wrote while attending law school. See my original comment on the case here.

Glass graduated and passed the bar exam in California but was denied admission. His application in California was denied by the Committee of Bar Examiners (CBE).This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.

The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation." There is a lot of information on this case out there. If you want to read more before watching the oral argument, take a look at my previous posts where I wrote on the case and provided links to many comments about it here, here and here.

Here is the video of the oral argument. It is about an hour long. (The video should start right when the argument begins, but I noticed that in some browsers it starts earlier. If your version does not start when the argument starts, fast forward to about the 13 minute mark.)

As always, it is difficult to predict the result of a case from the oral argument, but if I had to guess, my guess is that the Court was not too sympathetic. The appellant's argument was not perfect and it did have some weaknesses - particularly the rebuttal - but I think the judges seemed more critical of Glass' attorney's argument.

Friday, November 1, 2013

ABA issues formal opinion on whether attorneys can participate in "deal of the day" programs like Groupon

Bar associations and other state authorities have been issuing opinions on whether it is permissible for lawyers to use pre-paid discount services like Groupon to advertise legal services and attract clients. The NY Bar Association has approved participating in Groupon (see here), as have North Carolina, South Carolina and Maryland (see here).  On the other hand, the Alabama State Disciplinary Commission has ruled attorneys can't use Groupon (see here).  The Indiana State Bar Association has ruled it is probably unethical (here).

The ABA Standing Committee on Ethics and Professional Responsibility had been working on an opinion on the subject for some time and it was finally released.  It is available here.  The summary reads, in part, as follows:
Deal-of-the-day or group-coupon marketing programs offer an alternative way to sell goods and services. Lawyers hoping to market legal services using these programs must comply with various Rules of Professional Conduct, including, but not limited to, rules governing fee sharing, advertising, competence, diligence, and the proper handling of legal fees. It is also incumbent upon the lawyer to determine whether conflicts of interest exist.
The opinion explains there are two different ways in which attorneys could try to use deal of the day services:
For a lawyer, the two options described above might be illustrated as follows. Assume a lawyer charges $200 per hour for legal services. The lawyer could sell a coupon for $25 that would entitle the bearer to buy up to five hours of legal services at a fifty-percent discount; in other words, the $25 would allow the bearer to pay only $100 per hour for up to five hours of legal services, potentially saving up to $500. This first option requires the coupon bearer to make additional payment to the lawyer commensurate with the number of hours actually used. Alternatively, the lawyer could sell a deal for $500 that would entitle the buyer to receive up to five hours of legal service (with a value of up to $1,000), but all of the money would be collected by the marketing organization, with no additional payment collected by the lawyer no matter how many of the five hours of legal services were actually used. For ease of reference, this opinion will refer to option one as a coupon deal and to option two as a prepaid deal.
With these two models in mind, the opinion concludes that coupon deals can be structured to comply with the Model Rules.  However, the opinion concludes there are numerous difficult issues associated with prepaid deals and, therefore, the Committee is less certain that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.

For comments on the opinion you can check out Lawyer Ethics Alert Blogs.

Is it misconduct for a lawyer to ignore rule against including a claim for a specific dollar amount in a complaint?

Eearlier this week the New York Daily News reported on a recently filed claim alleging that energy drink Red Bull contributed to the death of a 33 year old man.  The story's headline read: “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”    Claims that energy drinks can contribute to someone's death have been circulating for some time now, so the allegation is not new.  (For more on that go here.)
What is interesting (for the purposes of this blog) is the fact that the complaint specifically asks for $85 million in compensation.  This is interesting because the practice of asking for a specific dollar amount in a complaint has been banned in New York (where the case was filed) for 23 years.  And yet, as NY blogger Eric Turkewitz adds, "some lawyers still put that clause in. Why? There are only two possible reasons . . . : Either the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue." 

Eric's post is worth reading here.  He goes one to argue, correctly in my view, that the emphasis on the amount of the claim detracts from the seriousness of the issue.  The story now becomes one about how much money the plaintiff's lawyer wants instead of one about whether a product is in fact dangerous or whether the defendant should change the way it markets the product.

What lawyers put in online profiles versus what clients want in profiles

This chart was created by Matt Homman and there is a comment about it in Real Lawyers Have Blogs

So you want to be a prosecutor?

Go here for some good advice.