Monday, December 19, 2016

Recent article on the criminal justice system

For those of you interested in issues related to the criminal justice system, you may want to check out a new article by David Patton (NYU Law School) which will be published by the Cornell Law Review.  In addition to discussing policy and constitutional law, the author argues that there are serious ethical problems with the current system of federal judges administering the system of federal public defense.  Here is the full abstract:
Independence is a foundational requirement for any good system of public criminal defense. The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence. And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients. The arrangement creates serious constitutional, ethical, and policy problems. This Article proposes a solution: an independent federal defense agency. The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services. The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.”  In many ways, federal public defense is ideally suited for placement outside of the formal branches of government. Many congressionally created independent organizations are structurally problematic because of separation-of-powers concerns that arise from the agencies’ enforcement or rulemaking authority. Federal public defense attorneys, however, neither make rules nor enforce them. And because of the nature of their work, they legitimately require insulation from direct government control — including from the Judiciary. In a criminal justice system that relies on its adversarial nature to function properly, it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases. It would be equally problematic to have the Judiciary act as the voice of the Department of Justice in Congress when explaining resource needs and seeking appropriations. And yet the Judiciary currently does all of those things with respect to the defense function. It should not, and the fix is straightforward: the creation of an independent defender organization.
You can download the full article here.

Friday, December 9, 2016

ABA Committee on Ethics and Professional Responsibility issues new opinion on safeguarding fees to be split with lawyers outside the firm

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No.475) to explain the duties of a lawyer who receives earned fees that must be shared with a lawyer from another law firm.  According to the opinion, the lawyer who receives the money must take steps to appropriately safeguard the funds by placing them in an account separate from his or her own property.  The attorney must then promptly notify the other lawyer, promptly forward the agreed portion to the other lawyer, and provide an accounting if the other lawyer requests it.  The opinion is available here for a limited time.

Not all jurisdictions agree with the approach but it makes sense to me.  The alternative is to have the lawyer transfer the money to the lawyer's general account and then pay the outside lawyer with funds from there.  Either way, the money will be commingling with either clients' money or lawyer's funds for a period of time.

IPethics & INsights has a nice comment on the opinion and its applicability to IP practice here. The Lawyer Ethics Alert Blog also has a comment on the opinion here.

Comment on jury nullification

Above the Law has published an interesting take on the issue of jury nullification.  You can read it here.

New Mexico public defender held in contempt for refusing to take cases arguing high caseloads impede proper representation

New Mexico’s chief public defender has been found in contempt of court and fined $5,000 for refusing to provide lawyers to represent criminal defendants in five cases because of his office’s high caseloads.  The ABA Journal has the story here.  Simple Justice has a good comment about it here.

Saturday, December 3, 2016

Short comment on the different approaches to ghostwriting

A few years ago, the issue of whether it was proper for an attorney to "ghostwrite" documents for pro se litigants was hotly debated.  Some jurisdictions took the position that it was ok, other required lawyers to disclose their role.  See here and here for example. 

I had not see much on the issue since then until a few days ago, when I saw a short comment in Lawyerist summarizing the state of the law.  You can read it here.

Pennsylvania adopts new rule related to counseling clients in marijuana business

The Legal Profession blog is reporting that the Pennsylvania Supreme Court has adopted an amendment to its rules to add a new subsection (e) to Rule 1.2, which states: "A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct." The rule adopted differs slightly from the proposed rule change published back in May. That original proposal allowed lawyers to counsel clients on conduct expressly permitted by the law of the state where it takes place or has its predominant effect. The adopted rule addresses only conduct permitted under Pennsylvania law.

As you may remember, several other states addressed the issue this year.  Ohio first banned lawyers from counseling clients, but later adopted a rule to allow it (see here and here).  Colorado amended the comment to its rules to address the issue.  See here and here.  For a general comment on the issue, go here.

California proposes change to rule regarding sex with clients

Model Rule 1.8(j) was adopted a number of years ago to regulate possible sexual relationships with clients.  It states that "a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."   

The topic is now back in the news because a few days ago it was reported that California is considering adopting the Model Rule's approach to the question (as part of an overhaul of the state’s disciplinary rules).  The current rule in California bars lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  For more details and links go to NPR, or the ABA Journal.  For a comment on the proposal go to Simple Justice.

The topic was also proved difficulty in Texas when it considered changes to the rules back in 2010.