NY State Bar issues opinion on whether an attorney can disclose confidential information in order to rebut comments by a client on a website

A couple of months ago, the New York State Bar Association Committee on Professional Ethics issued an opinion on an interesting question:  “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”

Holding that the "self-defense" exception to the duty of confidentiality does not apply to this type of case,  the Committee answered "no."  You can read the opinion (Opinion 1032 (10/30/2014)) here. The Committee finds that the "self-defense" exception should be limited to cases involving allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions.

The result seems sensible to me.  An ttorney would not be allowed to discuss confidential information about this matter with another person (say, someone who read the review and asks the attorney about it), so it would make sense the attorney can't disclose the information to the world at large.  In both instances, the attorney is not "defending" against an action by the client but addressing comments made by the client.  Take the website aspect out the equation and what you have is a former client talking to others and the attorney wanting to take a chance to give his/her side of the story to the same audience.  The attorney is free to do so, but can't disclose confidential information in the process.

The fact the comments are "published" (on the website) and can reach a much wider audience should not change the analysis.  The Committee suggested, however, that the answer might be different if client had somehow waived his expectation of confidentiality by posting the comments.  The Committee did not address that possibility because question was not presented by the facts before the committee. 


h/t The Lawyers Ethics Alert Blog

NY Times and ABA Journal on the interview with Robert McCulloch

Yesterday, I commented on the recent interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri, in which he seems to admit to having used perjured testimony.  Today, the New York Times and the ABA Journal picked up the story (here and here).  Both mentioned the fact that McCulloch admitted to allowing a certain witness to testify even though he "was sure" she was not telling the truth.

Again, if the prosecutor was "sure" the witness was not telling the truth, then why is allowing her to testify not a violation of the duty not to present false evidence?   Is saying that he was sure she was lying the same as saying he "knew" she was lying?  Or, is saying that he was sure simply saying that he strongly suspected that the witness was lying, but did not actually know it?

If it is the former, he admitted to violating the rules.  If it is the latter, he did not. 

Federal District judge finds that certain aspects of the Florida rules regarding advertising violate First Amendment

Almost exactly one year ago, I reported on a challenge to the advertising rules in Florida (here).  Coincidentally, just a few days ago, the Lawyers Ethics Alerts blog reported that a Federal Southern District Judge issued an opinion (apparently in a different case) granting summary judgment in favor of those challenging the rule (and against the Florida Bar) and enjoining the Bar from enforcing it. The case is Robert Rubenstein v. The Florida Bar. You can read the order/injunction here.

Did the St. Louis County prosecutor admit to a violation of the rule regarding perjury?

Below you will find a video of a radio interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri.  The interview is interesting for many reasons, but the part that really caught my attention was the discussion about the possibility that some of the witnesses committed perjury.

This discussion starts at the 9 minute mark of the recording.  The interviewer asks "Why did you allow people to testify in front of the grand jury in which you knew their information was either flat-out wrong, or flat-out lying, or just weren't telling the truth?" In response, McColluch is vague as to whether he agrees with the premise of the question (that he knew some of the witnesses were not telling the truth), but later he specifically says it was clear some of the witnesses were not telling the truth and, further, admits that he would not normally use witnesses like those - that he did that specifically for this one case. Later he adds that he was "absolutely sure" that some witnesses lied under oath, but that he would not seek perjury charges (at minute 16:15 or so).

Was that an admission that he knowingly presented false evidence/perjured testimony?

Are the rules related to grand juries so different that they allow the knowing use of false evidence in an effort to have the jury assess credibility?  That is how McCulloch tries to explain his conduct. He states that "I knew that no matter how I handled it, there would be criticism of it. So if I didn't put those witnesses on, then we'd be discussing now why I didn't put those witnesses on. Even though their statements were not accurate. So my determination was to put everybody on and let the grand jurors assess their credibility, which they did. ...I wanted to put everything on there. I thought it was much more important to present everything and everybody, and some that, yes, clearly were not telling the truth. No question about it."

If the prosecutor was so concerned with how "we'd be discussing now why I didn't put those witnesses on," let try this on for size: How about stating "because I have an ethical obligation not to put those witnesses on the stand.  Those witness are lying and the system can't function if we allow prosecutors to knowingly use false evidence."  That wouldn't be so difficult, would it?

I understand the prosecutor's decision to allow the witnesses to testify if he merely believed, but did not know, that they were lying. That essentially means he thought they had poor credibility and that it would be better to let the jury assess that credibility.  Allowing witnesses to testify when you have doubts as to whether they are telling the truth (as long as there is no knowledge) is not a violation of the rules.  But the prosecutor here used different language. He essentially said he knew they were lying. Once you have knowledge, the rule is clear.

Maybe the prosecutor meant the former but said the latter.  Otherwise, I think he admitted to using false evidence. I should clarify that this is not an admission of suborning perjury because suborning suggests he encouraged the witness to lie. Here what he seems to admit to is allowing someone to testify falsely when he knew they were lying. That is not suborning perjury but it is knowingly using false evidence which is a violation of Rule 3.3.

In the end, the question is whether the comments should be interpreted to mean he knowingly violated the rules or that he merely had doubts as to the credibility of the witnesses and allowed the jury to decide, which would not be a violation of the rules.  

Here is the video:

Richard Zitrin on what's going on in California

Richard Zitrin (UC Hastings) has published a column in The Recorder on what has been happening in California.  As you know, not too long ago, the state's supreme court rejected a proposal to substantially change the state's rules of professional conduct.  This was followed by the dismissal of a member of the Board of the State Bar, who followed up with a lawsuit.  It is quite an intriguing story.  You can read the article here.

Debate on the need for special prosecutors

A couple of days ago I posted a link to an article discussing prosecutorial discretion and what The New York Times called a "prosecutor's inherent conflict of interest" in cases that involve the possible indictment of police officers.  I also posted a link to a discussion in the Legal Ethics Forum on whether the prosecutor in Ferguson, Missouri had a conflict of interest.

As part of that discussion, many are calling for the use of special prosecutors in cases involving police officers.  The New York Times' Room for Debate has published five short comments on this issue here.

On using the phrase "and associates" when in fact the attorney does not have any associates

I have mentioned in the past that the use of the phrase "and associates" in a firm name can be found to be misleading when, in fact, there are no associates.  I doubt a lawyer would be sanctioned just for that reason, but it has been discussed as a violation of the rules in cases where the attorneys violated a number of rules.  For example, see Virginia State Bar v Head.

In that same context, Eric Turkewitz of the New York Personal Injury Blog is reporting that a recent case in New York listed the use of "and associates" as a violation of NY rule 7.5, as part of a list of violations discussed in the case.  The case is Matter of Cardenas and you can read it here.

California joins Massachusetts and Georgia holding the intra firm communication is privileged in case against the firm by former client

Back in July 2013, the Massachusetts Supreme Court held that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by one of the firm's clients are protected from disclosure to the client by the attorney-client privilege.   Shortly after that, Georgia issued an opinion agreeing with this position.  A strong debate followed (see here and here).  Oregon was next, and the debate continued.

And now, California Supreme Court has joined the list of jurisdictions recognizing the applicability of the privilege:  "The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications."  The decision is called Palmer v. Superior Court and you can read it here.   Go here for a little more information.

Attorney sues disciplinary board alleging the board has been engaging in unethical conduct

In an interesting turn of events, the Legal Profession blog is reporting that two Nashville lawyers are suing the Tennessee ethics board for what they call ethical violations and a cover-up.

Article on prosecutorial discretion

Here is an interesting article on prosecutorial discretion called Prosecutorial Discretion Under Fire: The Common Thread in the President’s Executive Action on Immigration and the Non-Indictment in the Michael Brown Case by Michael C. Dorf (Cornell). You can also listen to the article here (press the "play" triangle button). 

New York Times article on what it calls a prosecutor's "the inherent conflict of interest"

About two weeks ago, I posted a link to a comment on whether the prosecutor in Ferguson, Mo., had acted unethically because of a conflict of interest.  See here.  Yesterday, the New York Times published an editorial on the issue.  It starts as follows:

It is a long-established and basic reality of law enforcement in America: Prosecutors who want an indictment get an indictment. In 2010 alone, federal prosecutors sought indictments in 162,000 cases. All but 11 times, they succeeded.

Yet the results are entirely different when police officers kill unarmed civilians. In those cases, the officers are almost never prosecuted either because district attorneys do not pursue charges in the first place or grand juries do not indict, as happened most recently in Ferguson, Mo., and Staten Island.

There are various explanations for this, but the most obvious is the inherent conflict of interest that exists for prosecutors, who rely heavily on the police every day. Cops arrest suspects; they investigate crimes; they gather evidence; and they testify in court, working essentially in partnership with prosecutors.

Whether or not bias can be proved in a given case, the public perception of it is real and must be addressed.

The best solution would be a law that automatically transfers to an independent prosecutor all cases in which a civilian is dead at the hands of the police. This would avoid the messy politics of singling out certain district attorneys and taking cases away from them.

You can read the full article here.

Reversal of conviction because prosecutor used perjured testimony

The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.  For more details go to the Legal Profession blog.

New study on Brady violations

About two weeks ago, the National Press Club in Washington, DC (NACDL), released a new report, called "Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases."  According to the President of the NACDL "This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person."   You can download a copy of the report by clicking here.  You can find more information on the report here.

The problem of inflating billable hours

Here is a good short comment by Prof. Ronald Rotunda on the issues raised when lawyers overbill clients.

The most recent edition of The Professional Lawyer

The new issue of the ABA Professional Lawyer is available here  (for a limited time).  It includes the following articles:

Unfinished Business: The Legacy of Brown v. Board of Education
William C. Hubbard

Indie Lawyering: A New Model for Solo and Small Firm Practice
Lucille A. Jewel

The High Cost of Efficiency: Courthouse Tech and Access to Justice
Eric J. Magnuson, Nicole S. Frank

The Twenty-First Century Lawyer’s Evolving Ethical Duty of Competence
Andrew Perlman

The Law Firm Records Burden: Tips for Clearing the Warehouse
Janis M. Meyer

But I’m Just a Lawyer: Do Cloud Ethics Opinions Ask Too Much?
Stuart L. Pardau

Spectacular incompetence

I have used the phrase "spectacular incompetence" before, but this case may just be the worst.  At the time of the year when many blogs are preparing their "top ten" lists for the end of the year, I am wondering if this is the number one case in the "funny if it wasn't so sad and serious" misconduct category.

I am referring to the recently reported case in which a lawyer was disbarred for his incompetent representation of a client in a death penalty case.  The attorney had no prior experience in death penalty cases. He devoted little effort to preparing the case and had not tried a murder in twenty years. He didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders.  He was unfamiliar with ABA guidelines for trying capital murder cases. At trial, he informed the jury his client had previously been convicted of voluntary manslaughter, even though prosecutors agreed to a stipulation that the client had a prior felony conviction without further details.  Most bizarre is the fact that the attorney showed up to oral argument before the court dressed as Thomas Jefferson.

The court had little difficulty finding the attorney had provided ineffective assistance of counsel and eventually reversed the conviction.

The case is discussed in a public defender (which has photos of the attorney in his distinctive attire"), the Legal Profession blog and the ABA Journal.

Here is a video of the oral argument in question.  The attorney's argument starts at the 22:30 mark, where the attorney tries to explain the significance of the outfit.  Judge for yourself.