Friday, May 23, 2014

Podcast on lawyer advertising

Here is a podcast discussing issues related to lawyer advertising.  There is nothing particularly new here, but it might be interesting to those looking for new material to discuss old issues.

Podcast on jury nullification

I think the discussion of whether it would be ethical for an attorney to encourage the jury to engage in "nullification" is very interesting.  Unfortunately, we don't have enough time to go cover it enough in class.  For those of you looking for materials to discuss this issue, here is a podcast and discussion I just found in the website The Life of Law.

Sunday, May 18, 2014

Yet another shameful case of prosecutorial misconduct out of New Orleans

There is a new chapter in the shameful history of prosecutorial misconduct in New Orleans.  Another prisoner has been released, this time after spending 34 years in prison due to what the current Orleans Parish District Attorney called “shameful” misconduct.  What is truly shameful is that this is obviously not an isolated incident.  The case is out of the same office that resulted in Connick v. Thompson, Smith v. Cain and more.  The New Orleans Times-Picayune has the story here.

New York Times reports on internal investigation of GM legal department

Here is an interesting article in today's New York Times that reports on an on-going internal investigation on the role of GM's lawyers in the recent recalls and investigations that resulted in GM's agreement to pay a $35 million dollar fine.

For more on the GM mess go here and scroll down.

Tuesday, May 13, 2014

Minnesota Supreme Court has remanded the order disqualifying Covington & Burling in a case I have been writing about for almost 2 years

Back in August of 2012 I first reported on a complaint filed by 3M Corp. against the law firm Covington & Burling alleging that the firm had dropped 3M like a hot potato in order to represent the state of Minnesota in a case against 3M.  Covington argued that it was no longer representing 3M by the time it agreed to represent the state.  I posted my comments on that claim here

Meanwhile, aside from that lawsuit, 3M moved to disqualify Covington in the case in which it was representing the state against 3M.  I posted my comments on that here.  Although 3M claimed a violation of the hot potato doctrine as the basis for its motion, the court decided it on different grounds.  The court agreed with Covington that 3M was a past client, rather than a current one, thus making the hot potato doctrine irrelvant, but agreed with 3M that Covington should be disqualified for violating the rule against conflicts of interest as they relate to former clients (rule 1.9).   I commented on the disqualification order here.

Covington and its client then appealed the disqualification order and I wrote my thoughts on their arguments here.  I argued that once the court finds that the past representation of 3M and the current representation of the state against 3M are substantially related, Covington's arguments are relatively weak. 

In July 2013, the court of appeals affirmed the disqualification order, but Covington then appealed to the Minnesota Supreme Court.  For my post on this go here, which has a link to the opinion itself.

Now, almost two years after the affair began, the Minnesota Supreme Court has reversed and remanded the case holding that the lower court did not make enough findings to support its conclusion that the cases were substantially related.  This does not mean that Covington will not be disqualified; only that the court needs to make further findings to determine if it is justified to disqualify the firm.  However, the opinion suggests some of the factors it things should be considered and, in my opinion - for the reasons I argued in my post on the appeal to the appellate court - those factors will support Covington's position more than 3M's motion.

The Legal Profession blog has a note on the decision here.  Thanks to the Legal Ethics Forum, you can download the opinion here.

Debate on LegalZoom's business model continues

Back in April I reported that the South Carolina Supreme Court found LegalZoom is not engaged in unauthorized practice of law.  However, the debate as to Legal Zoom's business model continues. Some of the members of the Legal Ethics Forum debate the issue here and Professional Liability Matters addresses the issue here.

Indiana Supreme Court decides case that can help define the limits of the state's authority to discipline lawyers for comments about judges

I have been following the debate about whether (or under what circumstances) should the state be allowed to discipline a lawyer for comments about judges or other lawyers.  For example, see here, here, and here.  Adding to this discussion, the Indiana Supreme Court recently decided a case that may be helpful for defining the limits of the state's authority to discipline for speech about judges or other lawyers.

The case is called Brewington v. State.  It involved a non-attorney's conviction for intimidating a judge.  The conviction was upheld but the court's discussion develops an interesting analysis based on the distinction between speech that may be a threat to someone's reputation (which is protected) and speech that actually expresses a threat of physical harm (which would not be).  For a discussion of the case go here.

Thoughts on discovery practice

In class we spend a lot of time discussing ethical issues related to the practice of discovery.  A few days ago, Max Kennerly, of the Litigation and Trial blog posted some of his thoughts on issues related to discovery and to the discussions over motions to compel that take place after one of the parties fails to comply with their duty under discovery rules.  You can find the post here.  It is short  and worth reading.