Reforms Proposed For New York Bar Disciplinary System

A comprehensive series of reform proposals have been set forth in a recent report evaluating the New York State bar disciplinary system by the Commission on Statewide Attorney Discipline, including. among many others the creation of a more easily accessible, searchable, consumer-friendly, statewide website geared toward the legal consumer.

Also, I am happy to see the report pays particular attention to the need to take prosecutorial misconduct more seriously, a problem I have written about here repeatedly.

The Legal Profession blog has more information here.

Quick review of the basics of handling money

IPethics&Insights has a short post reviewing the basics on handling clients' money, firm bank accounts and the like, here.

Follow up on the story on judge's questioning of prosecutor's exercise of discretion not to charge

Less than a week ago, I wrote about a case in Colorado where a judge ordered a prosecutor to appear for a hearing to explain why the prosecutors' office did not file charges against a sheriff's deputy.  Go here for the details.  Today, the ABAJournal.com is reporting that the judge found the prosecutor should have filed charges (which I assume means the judge found the prosecutor abused his discretion in not doing so).  However, the judge also found that it was too late to do it now because the statute of limitations had run.

Should the judge have imposed sanctions for the abuse of discretion?  I don't think so.  Even though the prosecutor's explanation as to why he decided not to file charges is simply unbelievable (given the evidence available in the videos showing the incident), for good or for bad, prosecutorial discretion is a necessary component of our criminal justice system.  Prosecutors are, and should be, subject to criticism for their conduct, but in a case like this one, allowing the judge to impose sanctions would be problematic.

Court finds prosecutor intentionally withheld evidence and lied and yet denies habeas and does not even suggest sanctions

In another example of a court not doing anything to curb prosecutorial misconduct, the ABAJournal.com is reporting on a case from Texas where the court found that a prosecutor intentionally withheld evidence and lied multiple times and yet does nothing about it. The court just said it "did not approve" of the conduct. Wow!, what a bold statement!! You can read the opinion here.
 
Prof. Jonathan Turley did some research and found that the prosecutor in question has a long history of misconduct. Apparently over the years she has already violated 34 rules of professional conduct. You can read the full post on her long history here. Do you think she will be deterred after the most recent case? She hides evidence, lies, gets away with it and the defendant's conviction stands. What do you think?
 

Conviction reversed because prosecutor broke a promise to the defendant

I have posted numerous stories on courts reversing convictions because of the conduct of a prosecutor.  Most of the time, the conduct related to the duty to disclose exculpatory evidence, to comments in front of the jury or to conduct during the trial.  Recently, there were a few cases involving the misuse of powerpoint... 

But I don't remember seeing a case where the conviction was reversed because of a broken promise to the defendant.  The facts of the case are simple.  The prosecutor promised to drop charges of tampering with evidence if the defendant produced the weapon used during a crime.  The defendant produced it, but the prosecutor did not drop the charges.  As a result, the New Mexico Supreme Court vacated the conviction stating that a plea-bargained sentence must be fulfilled by the prosecution, or it will be enforced by the courts."  The case is State of New Mexico v. King, and it is available here.

This makes sense to me but I wonder if the court should have imposed sanctions on the prosecutor.  As I have argued innumerable times before, courts need to do more to curb prosecutorial misconduct.  

South Carolina redefines when the clock starts for purposes of the statute of limitations in a claim for legal malpractice

Last week, the South Carolina Supreme Court overruled prior precedent and held that the statute of limitations in a legal malpractice claim starts to run after the underlying case that gives rise to the malpractice action is resolved on appeal.

In this case, everyone agreed that the statute starts to run when the affected party knew or should have known that it had a legal malpractice claim against its trial counsel.  The question was whether the party 'knows or should have known' at the time they lose the case at the trial level, or at the time the higher court affirmed the decision of the trial level.

Overruling prior precedent on the issue, the court held as follows:  "We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations."

The case is called  Stokes-Craven Holding Corp., v. Scott L. Robinson and Johns on McKenzie & Robinson, LLC, and it is available here. The Legal Profession Blog has more information here. Professional Liability Matters has a comment here.

Ohio Board of Professional Conduct issues opinion on whether lawyers can discuss legal matters with attendees at, or after, seminars

To discuss the formation of an attorney client relationship, I give my students a hypo in which a lawyer gives a presentation at a seminar open to the public and then stays for a reception during which the lawyer answers questions about legal matters from one of the attendees.  Months later, the lawyer gets a motion to disqualify in a case because the person the lawyer had talked to during the reception argues the lawyer had been his lawyer in the past.

I don't remember where I got the hypo originally, but now I know how one jurisdiction has decided to avoid the problem it points to.  As reported in Legal Ethics in Motion, on August 7, 2015, the Ohio Board of Professional Conduct issued Formal Opinion No. 2015-2, in which it concludes that lawyers may present a legal seminar to prospective clients, after which lawyers may provide law firm brochures and information, but cannot answer attendees’ legal questions or personally hand out promotional brochures.  The law firm brochures and information must be left near the exit of the seminar, so that the lawyer, or a third party on the lawyer’s behalf, does not personally distribute the materials to attendees.   Legal Ethics in Motion has more information here.

I understand the spirit of the Opinion's conclusion and agree it might be a good idea for attorneys' to be extra careful when handling questions from the audience after a seminar, but I am not sure the opinion's suggestion (if it were to be considered an actual rule) would survive an attack under the first amendment case law.  The opinion's suggestion is a ban on an attorney's right to talk to people who come to the attorney for guidance.  I am not sure how strong the argument of the state would be that the circumstances implicate the "Ohralik dangers" (the few state interests that have been held to support an argument for state regulation of commercial speech.  On the other hand, if the regulation is seen as imposing merely a delay, or waiting period, then it may be argued that the state can impose it under the reasoning of Florida Bar v. Went for it.... but since most agree Went for it was wrongly decided...  I am skeptical.

In rare questioning of prosecutorial discretion judge orders DA to explain why no charges have been filed against a sheriff's deputy

As you know, prosecutors have vast discretion to decide whether to charge someone with a crime.  Prosecutorial discretion can be a dangerous thing, but it is usually thought to be needed for the proper functioning of our criminal justice system.

As explained in one of the few texts available on prosecutorial ethics, "[t]he decision of what criminal charges to bring against an accused provides perhaps the best example of the vast discretion held by the prosecutor's office.  ... If the prosecutor determines that no charges are warranted, neither a private citizen nor a judge may compel the prosecutor to commence criminal proceedings.  See, R. Michael Cassidy, Prosecutorial Ethics, Ed. ed. 11 (2013).

For this reason, it is surprising to read that a District Judge in Denver has ordered the Denver district attorney to appear in court today to explain why a sheriff’s deputy wasn’t prosecuted for slamming an inmate, who was in handcuffs and waist chains at the time, into a courtroom window frame during a court proceeding.  The incident was caught on camera, as seen below.  As you can see in the video, the defendant is addressing the judge calmly (about something related to the investigation) when the deputy attacks him and starts yelling "don't turn on me!"

According to an article in The Denver Post, here,  the District Attorney has been criticized by various community groups, including the NAACP and Colorado Latino Forum, because he rarely prosecutes police or sheriff's deputies accused of excessive force.

The decision by a judge to question prosecutorial discretion is rare and its implication can be important.  I am very interested to see what comes of this.  

Here is an UPDATE.

Indiana State Bar Association issues new opinion on confidentiality which contradicts the text of the rule it attempts to interpret

The Indiana State Bar Association recently issued a new opinion on confidentiality that concludes that absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary to prevent reasonably certain death or substantial bodily harm.  You can read the opinion, Op. 2 of 2015, here.  If that was all, this conclusion sounds perfectly consistent with the doctrine of confidentiality.  Unfortunately, it is not.

The question addressed by the opinion relates to the apparent conflict between a duty to report imposed on everyone by a state mandatory reporting statute and the duty of confidentiality which, subject to some exceptions, requires lawyers to keep secret information related to the representation.

As the opinion explains, the mandatory reporting statute in Indiana is broadly phrased, stating that any individual who has reason to believe that a child is a victim of child abuse or neglect is obligated to “immediately make an oral report to (1) the department [of Child Services] or (2) the local law enforcement agency.”  Making no exceptions for lawyers, the statute appears to require lawyers to disclose confidential information.

Given the apparent conflict between statute and the duty of confidentiality, the Legal Ethics Committee of the ISBA attempted to reach a compromise based on the general policy behind the duty of confidentiality and the text of the exception to the duty of confidentiality that allows, but does not require, an attorney to disclose information if needed to prevent substantial bodily harm or reasonably certain death.

Inexplicably, however, the Committee failed to mention the text of Indiana's rule, derived from the ABA's Model Rule 1.6, which clearly states that a lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to comply with other laws.

In other words, according to the text of the Indiana Rules of Professional Conduct itself, a lawyer can disclose confidential information without violating the rules, in order to comply with the mandatory reporting statute.  The committee is simply wrong in finding a conflict between the rules and the statute.  The statute says you must report; the rules say you can. 

In fact, it is the Committee's new interpretation of the rule that is now in conflict with the text of the rule.  The Committee's opinion ignores the clear text of the rule, and, worse, re-writes it with a new interpretation that is not supported by the text. The Committee concludes that in many cases a lawyer can't report, when the rules say the lawyer can.

Now, let me be clear that I am not saying the conclusion suggested by the Committee is not good policy.  What I am saying is that it is not supported by the text of the rules.  If Indiana prefers the Committee's approach to the issue, it should amend the rules to reflect it.

UPDATE 10-7-15: Legal Ethics in Motion has a comment here.

UPDATE 10-12-15:  Professional Responsibility A contemporary approach has a comment here.

UPDATE 10-13-15:  I posted a follow up on the story here.

UPDATE April, 2016:  I wrote an article about this topic and you can read it here.

NPR: New report criticizes the control judges exercise over the federal government's system for defending poor people

According to a story in NPR, a new report by the National Association of Criminal Defense Lawyers concludes that judges have too much power over the federal government's system that provides representation to the poor.  It says that judges who are supposed to be neutral arbiters too often put their fingers on the scales.  You can read the report here.  NPR has the story here, or you can click on the play button below to listen to it.

Bar Standards Board of England and Wales amends rule regarding duty to provide representation

The Bar Standards Board that regulates barristers in England and Wales recently approved a proposal from to change an existing rule which says, in essence, that barristers are required to accept clients who request their services. Barristers are now allowed to refuse to represent clients under certain circumstances. For more information, go here.

The English approach to the duty to provide representation, even as amended recently, is very different than the American approach which is reflected in the ABA Model Rules. The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments, and even then, Rule 1.16 recognizes a number of reasons that would justify refusing to accept the appointment.

Kansas Supreme Court holds plaintiff in malpractice case based on representation in criminal matter does not have to show actual innocence

In most jurisdictions, a plaintiff suing an attorney for malpractice arising out of the attorney's representation in a criminal matter has to meet not only the elements of the cause of action but also has to show actual innocence.  This approach has been criticized by many in the literature but it continues to be the majority view.

However, a few days ago, the Kansas Supreme Court joined the minority of jurisdictions where this is no longer the case.  In a case called Mashaney v. Board of Indigents' Defense Services, the Court held that a convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence.

The Legal Profession Blog and the Chicago Legal Malpractice Lawyer Blog have more on the story here and here.

Wrong Way To Collect A Fee Or Best Way To Get Disbarred?

I always tell my students that the easiest way to get disbarred is to steal money from clients.  Disbarment is almost guaranteed.  But there are other ways, I guess...  There is a story making its way around the internet about a lawyer who was disbarred for using abusive, insulting and racist language toward a client.  It has been discussed in a few other blogs, but  I liked the title of this one blog post about it: Wrong Way To Collect A Fee Or Best Way To Get Disbarred?