Happy New Year!

I have been gone for weeks for our winter break, but I wanted to take a moment away from all the vacation family fun to wish everyone a great new year!

 

Thank you for reading and supporting the blog. I will continue to do my best to keep up and bring you news and commentary in the new year.

 

Happy New Year!!

Florida law firm files suit challenging constitutionality of Florida Bar’s 2013 advertising rules

For some reason, the Florida Bar seems to be intent in imposing the most excessive restrictions on attorney advertising. This is not entirely surprising since this is the same Bar organization that initiated the litigation that resulted in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), one of the worst attorney regulation decisions of all time, in which the Court validated regulation on speech because some might find it offensive.

Now comes news that a law firm has filed a law suit challenging the Florida Bar’s new effort to interpret a prohibition on “inherently misleading” statements to include a requirement that all communications by a lawyer be “objectively verifiable.” You can find a copy of the complaint here.  (via Legal Ethics Forum).

Max Kennerly has a comment on the lawsuit here. He argues that the Florida Bar's regulation bans lawyers from having opinions, saying "When I saw it, I had to double-check to see if it was a joke....[T]he Florida Bar precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” Lawyer Ethics Alerts Blog also has a comment here.

I agree the regulation in question should be challenged.  As we all know, the state can (and should) regulate statements that are misleading or false.  But the fact that a statement is an opinion does not make it, by itself, misleading.  This is the basis of the Florida Bar's conclusion: that an opinion is, by its very nature, misleading.  And that, I suggest, is not only wrong but also misguided.  Prospective clients looking for an attorney would be better informed if they know the attorney's opinions on matters that concern the prospective client's interests.  I hope the challenge to the rules is successful.

Fellowships for study of professional ethics at Auschwitz

FASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for a fellowship that uses the conduct of lawyers and judges in Nazi Germany as a launching point for an intensive two-week early summer program about contemporary legal ethics. Applications from all law students, regardless of what field of law they are interested in, are sought. Fellowships include an all-expense paid trip from New York to Berlin, Krakow, and Auschwitz where students will work with leading faculty to explore both legal history and the ethical issues facing lawyers today. All program costs, including international and European travel, lodging, and food, are covered. The 2014 program for FASPE Law will run from May 25 to June 5. Completed applications must be received by January 6, 2014. Candidates of all religious, ethnic, and cultural backgrounds are encouraged to apply. To apply or to learn more about FASPE, please go here.  If you have any questions, please contact Thorin R. Tritter, Managing Director of FASPE, at ttritter@FASPE.info.

Please complete this survey, it may help suggest changes to the disciplinary process in Georgia

Clark D. Cunningham, the Director of the National Institute for Teaching Ethics & Professionalism (NIFTEP) and Professor of Law and Ethics at Georgia State University College of Law has asked me to post this message:

A case in Atlanta that has caught the attention of the media this week opens a brief window of opportunity during which it may be possible to get an initiative going to  strengthen Georgia’s attorney discipline procedures. I am thinking of writing a letter to our state bar’s Committee on Disciplinary Rules and Proceedings recommending a number of changes. I would like to have as much comparative information about other states as possible when I write that letter. I have developed a very short on-line survey that would take less than 5 minutes to complete if the person is familiar with their own state’s disciplinary system. As you can see on the form, I offer to share the results.  Here is the link:  www.surveymonkey.com/s/DisciplinarySurvey  

Cordially,

Clark

As you will see from the survey it appears that Georgia has some unique rules.  Clark is trying to gather information on whether other jurisdictions have similar rules.  I completed the survey and it really does take less than five minutes to do so. 

The worst lawyer commercial I have ever seen!

There is a controversy brewing over a commercial for a law firm that was posted on YouTube recently.  The company that produced it says it was contacted by someone claiming to work for the firm and that this person approved the commercial.  The firm argues its Facebook account was hacked and that it has asked the advertising company to take it off the web.  The ad company has refused.  For now, the ad is still available here.  It speaks for itself.

Soon after the ad was discovered, Above the Law criticized what it called “racist imagery.” The ad company protested and PopeHat then responded in very strong terms (calling the ad company person "a racist asshole").  Raw Story, Lowering the Bar, FindLaw and the ABA Journal also have stories on the controversy.

DC's strange concept of moral turpitude

In Washington DC if an attorney's conduct is found to involve "moral turpitude" disbarment is automatic.  The problem is that there is no clear definition of the concept of moral turpitude and the boards and courts continue to make very strange rulings on it.  For example, a few years ago the Board on Professional Responsibility concluded that a lawyer's conviction for murdering his wife did not establish moral turpitude (here), but this was later reversed.  Then there is the case of a lawyer who lied, cheated and stole property from a store for personal gain.  He was convicted for it, yet the DC Court of Appeals found that the conduct did not involve moral turpitude - even if it could be considered to be a "serious crime."  I wrote a long comment on that case here.  And finally, there is the case in which an attorney who was convicted of felony traveling for the purpose of engaging in sex with a minor was found not to 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 and was convicted and sentenced to 15 years behind bars.  My comment on that one is here.

But not all is hope is lost.  While holding a child as a sex slave is not moral turpitude, it has been decided that tampering with a witness constitutes moral turpitude (here). And today comes news that a new opinion of the DC Court of Appeals has found that a conviction for obstruction of justice constitutes moral turpitude per se.  The Legal Profession blog has more on the case, including a comment on it from the Huffington Post here.

I guess I just don't understand the concept of moral turpitude.  It would seem to me that it has to mean something broader than interference with the judicial process, which seems to be what the DC decisions are limiting it to.

Is the title "the King of Torts" unethical, or illegal?

Over the years, a number of lawyers have been known as "the King of Torts."  Dickie Scruggs, Melvin Belli, Joe Jamail, among others have been awarded the title (whether by themselves, other lawyers or the media), but noone took it too seriously.

Obviously, the title is just a nickname... but, just for fun, consider this:  Over at the Abnormal Use blog I found a story that mentions something called the Titles of Nobility Act of 1810 (“TONA”), which reads, in part, as follows: "If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, ... such person shall cease to be a citizen of the United States ...."

According to the story, TONA was proposed as the 13th Amendment to the Constitution and approved by by both the Senate and the House in 1810 but was never ratified by three-fourths of the states.  However, some have argued that the amendment became law upon the discovery of Virginia’s apparent ratification in 1819.  For more on this, go here.

New York starts program to provide public defenders for immigration proceedings

NPR is reporting that a new pilot program in New York City was launched earlier this month to provide public defenders to defendants facing deportation in immigration court (where the Constitution does not extend the right to court-appointed attorneys).  Go here for the story.


Thanks to the Legal Ethics Forum for the story.

New York City Bar issues report on the ethics of "cloud computing"

The question of whether it is ethical to use "the cloud" to store documents has generated a few ethics opinions.  I reported on the opinions from New Hampshire (here) and Florida (here).  Now, the NY City Bar Association has issued a new opinion.  Go here for the story and here for a copy of the report.

Thanks to the Legal Ethics Forum for the link.

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.

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.

How should you behave during court appearance

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

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.

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.

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.

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.

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. 

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?

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.

Even more on the reversed convictions for prosecutorial misconduct

The Legal Ethics Forum has some more links here.

More on the egregious conduct of the prosecutors in New Orleans

Yesterday I posted some links on the recent reversal of a conviction due to prosecutorial misconduct.  Today Seeking Justice has posted a long comment on the case here.

More convictions reversed because of prosecutorial misconduct

Describing the conduct of Justice Department lawyers as “grotesque,” U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up. The 129-page order identifies “unprecedented events and acts” of misconduct by prosecutors.  Jonathan Turley has a comment on the case here.

How not to practice law: insult the opposition

In class we discuss some cases on the question of whether an attorney can or should disciplined for expressing offensive opinions or for making racist comments.  Among other things, we draw distinctions between expression and conduct and between offensive-but legal conduct and conduct that violates valid regulation on discrimination.  The discussion is interesting because eventually the question becomes whether the rules should be different for lawyers simply because they are lawyers.  And, as you probably know, the result of some of the cases is that the answer is yes.

Interestingly, the Legal Profession blog is reporting on a new case that adds to the debate.  In this case, available here, the Indiana Supreme Court has imposed a 30-day suspension on an attorney for writing a letter to opposing counsel in a divorce action that contained the following statement:  "Your client doesn't understand what laws and court orders are. Probably because she's an illegal alien to begin with." The court rejected the suggestion that the comment was legitimate advocacy and concluded that it had no purpose other than to embarrass or burden the opposing party.

I don't think that the conduct in this case, although offensive, would be sufficient to impose sanctions under the Model Rules.  Indiana's rule 8.4(g) clearly holds that it constitutes misconduct to "[e]ngag[e] in conduct, in a professional capacity, manifesting bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors, and this conduct was not legitimate advocacy."  This language is taken from part of the comment of the Model Rule which suggests such conduct can be considered to be a violation of MR 8.4 but only if the conduct is prejudicial to the administration of justice.

Should sexist comments be a disciplinary offense? Should they be tolerated either as a “First Amendment right”? For a discussion on the subject, see Roberta M. Ikemi and Carol A. Sobel, Should Sexist Comments be a Disciplinary Offense?, 81 A.B.A. J. 40 (August, 1995). Ikemi argues that “[i]f we truly believe in equal access to justice, the courts should have the power to discipline lawyers for gender-biased or racist conduct” because “[w]hen directed at other lawyers, this behavior is evidence of an unwarranted opinion about who is deemed to be a worthy opponent. Left unchecked, the conduct has the effect of intimidation and denies the value of the attorney’s contribution to the legal system. In short, gender-biased and racist conduct denies the principle of equal access to the justice system and its courts, and keeps it from becoming a reality by silencing those who would implement it.” 

In contrast, Sobel suggests that “the fact of a problem with gender bias by attorneys in the judicial system does not excuse any action to discipline attorneys for “objectionable” speech.” She argues that the “utterance of biased expression should not be enough to invoke the sanctions of the legal system because one important part of our commitment to expressive rights is that no person’s speech will be punished simply because it is found to be “offensive” to another person or portion of the community.”  

California legislature passes bill permitting non-citizens to become California lawyers

Last year I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (in California).  The California Supreme Court recently heard oral arguments, and I posted a link to the video of the oral argument and more articles here.

Now the JDJournal is reporting that the California Supreme Court rejected the candidate's argument holding that the federal laws that prohibited professional licenses to illegal immigrants also allowed state legislatures to carve out exemptions.  (I have not yet seen the opinion on this.)

But the  story does not end there.  In a somewhat surprising move, the California Legislature has approved a bill to allow law licenses to illegal immigrants.  Go to JDJ for more information.  (Thanks to the Legal Ethics Forum for the link.)

Another comment on prosecutorial misconduct

Just a few minutes ago I posted a note about a recent case from the Fourth Circuit on prosecutorial misconduct.  Here is another comment on the same case.  The case is U.S. v. Bartko.  As this comment states, the court's opinion was notable not only for its lengthy reprimand of the practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about it.

Yet another example of why there is so much prosecutorial misconduct

I hate to sound like a broken record, but here I go again:  prosecutors will continue to break the rules unless courts begin to take the problem seriously.  Here is the latest example of the problem.  As recently posted in Seeking Justice "until there are serious consequences, including reversal of convictions, disbarment, and sanctions against the prosecutors, we will all continue to suffer from blatant disregard of the law with impunity by the very people who are sworn and empowered to protect us."

Ethics Forum essay writing competition

The Legal Ethics Forum is sponsoring an essay writing competition with cash prizes.  Go here for details. 

More on the issue of violating conflidentiality when replying to an on line review

A couple of days ago I posted a note on a recent complaint filed alleging an attorney disclosed confidential information when replying to a negative on line review.  Today, the Legal Ethics Forum picked up the story and added a couple of interesting questions:  whether the "self-defense" exception in Rule 1.6(b)(5) would ever authorize a lawyer to respond to a negative on-line review of the lawyer's services and whether a lawyer who wants to exercise control over his or her on-line reputation could have as part of the retainer agreement a provision where the client agrees not to post any reviews of the lawyer's services (if the client did post something, the attorney could then have a breach of contract action).  Take a look at the comments section of the Forum where you will find links to relevant materials on these issues.

My own opinion on the first question is that there is nothing that prevents a lawyer from replying to a review but the lawyer has to be careful not to disclose more information than necessary.  For other comments on this issue, go here. In most cases, the attorney can defend his or her reputation without the need to disclose information that is not public already.  The problem in the Illinois case was not that the attorney replied to the review, but that he disclosed more information than was necessary.

On how to handle a problem client

Professional Liability Matters (blog) has a short comment with practical advice on how to handle a problem client here.

Violating the duty of confidentiality when replying to an online review

The Legal Profession Blog is reporting that the Illinois Administrator has filed a complaint alleging that an attorney violated her duty of confidentiality by responding to a client's unfavorable review of her services.  There is nothing inherently wrong in replying to an online review, but just like anywhere else, you have to be careful about what you say.  The attorney in this case allegedly disclosed more information that was necessary (in fact, more information that was relevant) and thus is now facing the complaint for disclosing confidential information. 

Oral argument on whether undocumented immigrant should be admitted to practice

Last year I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (in California).  See here, here, here and here.  The case was finally heard by the Supreme Court of California and here is a link to the oral argument.  Also, take a look at the comments on the argument (and some predictions) at the Legal Ethics Forum.  There are more links there too.

Teacher gets disciplined for threatening to kill people

Here is the story. Could a lawyer be disciplined for similar conduct? 

Debate about intra-firm privilege continues

Last month I posted a few links to other blogs and an op-ed piece on the issue of intra-firm privilege.  See here.  The Legal Ethics Forum now has more links here.

Newspaper and TV reports on the Florida public defender I mentioned earlier

Here is a report on the elected public defender in Florida I mentioned in my previous post.  Also here is a clip from Action News:

Elected state public defender?

I must confess I did not know that in some jurisdictions the Public Defender is an elected position.  Wow!  I find that hard to believe.  The dangers to the system of justice in that idea seem apparent to me and now seem to be quite clear in Florida.  I just found out by reading a comment in A Public Defender (blog) on the situation in Florida.  You should take a look at it here.

Comment on NY opinion on "specialties" and LinkedIn

I have more than once complained about the lack of common sense when it comes to rules related to advertising lawyers' "specialties."  (See here, for example.)  Adding to this issue, the New York State Bar Association recently issued an ethics opinion on lawyer use LinkedIn’s “specialty” feature.  See Ethics Opinion (EO) 972.

The opinion concludes that listing practice areas under LinkedIn's “Specialties” section would constitute a claim that a lawyer or firm is a specialist in a particular field of law and thus, absent certification would violate New York Rule of Professional Conduct 7.4(a).  One problem with the opinion, however, is that as of March 2012, LinkedIn deleted the specialties option.

But the opinion raises a number of other issues that merit discussing.  First, again, I think it is nonsense to argue that it is improper for an attorney to advertise he or she specializes in a certain area of the law.  See my previous posts on this for more on that.

Second, it is worth asking whether states are fighting a losing battle when attempting to regulate the use of social media which changes so quickly.  And, if so, it is worth asking what is the better approach.

Carolyn Elefant has a short comment on this subject in her blog MyShingle.com here.  Her position is simple:  Lawyers’ ethical obligations when using social media may be summarized with a simple mandate:  "No deception."  Yet, she argues, "rather than invoke the simple litmus test of whether a communication is deceptive to a reasonable viewer to evaluate lawyer advertising, disciplinary committees feel compelled to spill thousands of words analyzing the ethics of each and every feature of each and every iteration of each and every social media platform."  

And her conclusion:  "I’m not suggesting that the bars relax regulation of lawyers using social media. But when it comes to the ethics of social media, one small graphic combined with a little bit of common sense is worth not just 1000 words but thousands of dollars in savings as well."

Read her full comment here.

Should a lawyer be disciplined for his conduct as a client of another lawyer?

Just a few days ago, the Missouri Supreme Court issued an opinion that raises an interesting question.  Here is the story, in a nutshell:  suppose attorney A hires attorney B to help him file a series of claims.  Now assume that the claims are frivolous.  Clearly Attorney B would be subject to discipline and sanctions under both rules of professional conduct and rules of procedure - assuming Attorney B knew the claims were frivolous.  But how about Attorney A.  He was not practicing law; he was a client. 

The court found the lawyer should be disciplined and, in fact, imposed a pretty severe sanction for the conduct.  The case is called In re Lawrence J Hess and it is available here.  (Thanks to the Legal Profession blog for the link.).  One judge wrote a concurring opinion arguing that the rule on frivolous litigation should only apply to the lawyer who acted as a lawyer not to the one acting as a client.  One judge wrote a dissenting opinion finding the conduct did not violate the rules at all.

The concurring opinion makes an interesting point.  She argues that the conduct violated rule 8.4 (conduct prejudicial to the administration of justice), but that the rule related to filing frivolous claims should apply only to the lawyer acting as an advocate.  It is this lawyer who has the duty to exercise independent professional judgment to decide whether the claim is frivolous and who has the duty to tell the client it should not be filed.

This is a close call for me.  I understand the logic of the argument in the concurring opinion, but it is not inconsistent with other rules to say that they apply to lawyers even when they are not in the practice of law.   In the end, given that the sanction would not change regardless of whether it is determined that the attorney violated one or two rules, the issue may just be academic. 

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.

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.

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 (http://bernabepr.blogspot.com/) 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.

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.

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.

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.

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.

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.

How not to practice law: ask client to pay for legal services with sex

Here is the most recent addition to our running list of examples of how NOT to practice law. This is one we have seen before and it should be pretty obvious... but it continues to happen. Go here for the full story.

Connecticut Law Tribune editorial on prosecutorial misconduct

I often complain that courts do not take prosecutorial misconduct seriously enough.  To its credit, The Connecticut Law Tribune does.  It recently published an editorial, criticizing all the arms of the criminal justice system for their complicity in repeated instances of prosecutorial misconduct during closing arguments by Connecticut prosecutors.

Thanks to "a public defender blog" for the link. Go here for their comments on the article.

Criticism of District Attorney following Zimmerman trial

Jonathan Turley has posted his opinion on the conduct of the District Attorney in charge of the Zimmerman prosecution.  He states that the DA's office "stands accused of serious allegations of withholding evidence from the defense. I have previously said that I view those allegations as highly credible and worthy of sanctions. She is also facing a whistleblower lawsuit after she fired an IT specialist who revealed that her office was withholding evidence in the Zimmerman case" and concludes that "[a]t a minimum, [the DA's] actions and comments strike me as highly unprofessional." Read the article here.

More on the Zimmerman case

Again, as expected there are more comments on the Zimmerman verdict.  Here are links to some I saw today (with brief quotes to give you an idea of the content of each).  Click on the links to read the full articles:

Zimmerman prosecutors further beclown themselves (Legal Ethics Forum)
("the prosecutors who showed such bad judgment in the Zimmerman matter do it again, just in case you had any doubts. When you bring the wrong charge, try the wrong case, and decisively lose the case, you shouldn't mug for the camera, cya, talk about how well you would have done if the trial had been completely different, mock the acquitted accused for a supposed lack of courage, disparage the defendant for exercising his constitutional rights, etc.")

Angela Corey Fires Whistleblower Who Revealed The Withholding Of Evidence From Zimmerman Defense
("the prosecution team of Angela Corey in the Zimmerman case have been accused of repeated prosecutorial abuse in the withholding of evidence from the defense. ...Corey has been widely criticized for over-charging the case ... and her team was widely criticized for putting on a weak case for prosecution. Now, before [a ruling] on her office’s withholding of evidence, Corey has fired [the person who disclosed it]. His termination before a ruling on the alleged prosecutorial abuse only strengthens his claims as a whistleblower and throws the ethics of Corey and her office in great question.")

Law and Legend: How The Zimmerman Case Was Lost By The Prosecution (Jonathan Turley)
("Criminal cases often make for easy and dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters — discarding those facts that do not fit our narrative. Zimmerman and Martin became proxies in our unresolved national debate over race.")

Can a lawyer advice a client to "clean up" a Facebook page?

There are a lot of stories out there about lawyers looking for evidence in clients' and opponents' Facebook pages, so it is interesting that I saw two stories this week on whether a lawyer can advice a client to delete material from the client's social media sites. One says it is ok, the other one argues it would not be.  At first sight, it appears the stories contradict each other, but maybe they don't.

First, according to an opinion by the New York County bar's ethics committee (New York County Lawyers Ass'n Comm. on Professional Ethics, Op. 745, 7/2/13),attorneys may in some circumstances advise a client to “take down” social media and online postings that could have an adverse effect on the client's position in a civil matter:  "An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages…. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed."

The key to this opinion is, of course, "provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence".  In other words, what the opinion apparently says is that if it is OK to do it under the law, it is ethical to advice the client to do it.  Nothing new there.

The question then is, is it OK to do it under the law?  Not according to this story in the Professional Liability Matters blog which concludes that "[o]ne rule that is well established is the requirement that a legal hold be implemented for all relevant materials, including social media content. The failure to abide by this rule could be dire."  (There is a follow up story in the PLM blog here.)

More comments on the Zimmerman verdict

Yesterday I wrote that we would see many comments on the Zimmerman verdict in the next few days.  Here are links to some I saw today:

USA Today column by Jonathan Turley

An imaginary dialogue trying to explain Florida v. Zimmerman to someone who has not had the benefit of a legal education by Stephen Gillers

George Conk at Otherwise

Jury nullification argued by prosecution in Zimmerman case (Legal Ethics Forum)

Day on Torts

Georgia Supreme Court agrees with recent ruling re intra-firm privilege

A few days ago I reported that a new decision from Massachusets recently held 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.  Now comes news that the Georgia Supreme Court has issued an opinion reaching the same conclusion.  The Legal Ethics Forum has the story and links here.