Saturday, October 28, 2017

Video on ethical issues related to the use of social media

Law Technology Today has posted a short video discussing a number of ethical issues related to the use of social media, including the dangers associated with disregarding confidentiality, unethical information gathering, failure to assert client control, evidence preservation and spoliation, ethical conduct involving jurors, and the impact of what attorneys share on social media themselves.  You can watch the video here.

Louisiana continues to make bad law regarding duty to disclose exculpatory evidence

As you probably know already, Louisiana has a long (and on might say troubling) history as it relates to the duty of disclosing exculpatory evidence (see  here and here), most notably Connick v. Thompson and Smith v. Cain (See here, here, and here).

Now comes word that the Louisiana Supreme Court has held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.

Although the ABA Standing Committee on Professional Responsibility has held that the Model Rule imposes a broader duty (see Formal Opinion 09-454), a few jurisdictions have held otherwise.  I have written about this in the past here.

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in, at least, Washington, Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  The New York City bar's ethics committee has also issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland.  See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, and Wisconsin.

The Legal Profession Blog has a discussion on the new decision by the Louisiana Supreme Court here.  The case is called In re Seastrunk and you can read the opinion here.

FL supreme court asked to decide whether lawyers and judges can be Facebook friends

Last summer, the Third District Florida court of appeals affirmed an order refusing to disqualify a judge who was Facebook friends with one of the lawyers in a case before her.  The law firm that had filed the motion to disqualify has now asked the Florida Supreme Court to accept an appeal, citing a split on the issue among Florida state appellate courts.  The Law for Lawyers Today has more details on the story, and some links to more information on the issue, here.

UPDATE 11/4/17:  

Wednesday, October 25, 2017

Court imposes $9 million sanction on two firms for filing frivolous lawsuits

Just as my students and I are about to start discussing ethical issues related to litigation, including the rules related to filing frivolous claims, I saw this bit of news. 

A panel of four federal judges recently imposed sanctions totaling $9.1 million on two Florida law firms for filing 1,250 frivolous claims against tobacco companies accused of hiding the dangers of cigarettes, including suits on behalf of people who never authorized the suits, people who never lived in Florida, nonsmokers, and people whose cases had already been tried.  They also filed claims on behalf of people who had died before the claims were filed as if they were still alive rather than as wrongful death claims.

The ABA Journal online has the story here.

Saturday, October 21, 2017

How not to practice law -- UPDATED

It has been a while since I posted a story to the running "How not to practice law" series, so here are two new ones.

How not to practice law:  As a prosecutor, be in a personal-romantic relationship with the lead FBI investigator you use as principal witness to get indictments before a grand jury.  The Legal Profession Blog has the story.  The prosecutor was suspended for a year and a day (although all but 6 months was stayed.)   [UPDATE 10/29/17:  Lawyer Ethics Alerts Blog has a story on this case here.]

How not to practice law:  Offer to pay a witness $7,000 for his "honest testimony."  The Law For Lawyers Today has that story here.  The lawyer was suspended for 35 days.

Thursday, October 19, 2017

Utah State Bar has issued yet another ethics opinion stating that participating in Avvo Legal Services would be unethical

As long time readers of this blog know, I have been following the developments related to Avvo Legal Services for a while.  You can read all my comments by going here and scrolling down. 

Not too long ago, I commented on the fact that ethics committees in Ohio, Pennsylvania, South Carolina, New Jersey and New York had issued opinions holding that it would be unethical to participate in Avvo Legal Services.

Now comes news that about three weeks ago the Utah State Bar Association issued a similar opinion.  Although it does not mention Avvo by name, it concludes that participating in a program whose description is just like Avvo Legal Services would violate Utah’s Professional Conduct Rule 5.4 which bans splitting fees with a non-lawyer and Rule 7.2 which regulates restrictions on payment for recommending a lawyer’s services.  

In addition, it finds that the fee paid by the lawyer does not appear to be a fee for the reasonable costs of advertising and discusses how participating in the service may violate a number of other rules related to client confidentiality, lawyer independence, and safekeeping of client property.  Finally, the opinion states that participating in the program raises serious concerns about a lawyer’s ability to comply with Rule 1.15 since “[i]t is difficult to see how a lawyer can protect client funds “with the care required of a professional fiduciary” when trust fund account information is provided to a third party over which the lawyer has no control.”

As I have stated before, given the current regulatory structure, I am not surprised.  You can read the full opinion here.

Monday, October 16, 2017

"My computer ate my homework" is not a good excuse -- UPDATED

As readers of this blog know, the Model Rules of Professional Responsibility and now more than half the states, consider part of the duty of competence a duty to understand "technology" used in the practice of law.  (Go here for my most recent post on this.)  This means not only that lawyers should understand how the technology works but also how to use it properly.

So, what happens if the clerk of courts e-mails you an order, but your spam filter catches the e-mail and then deletes it after 30 days without alerting you, and you therefore fail to appeal the order in time?  You may be in trouble, that's what.

The Law For Lawyers Today discusses the issue here.

UPDATE:  Vermont's bar counsel, Michael Kennedy, picked up the story and added another good one.  In this new one a lawyer sent an email to a client asking whether the client wanted to file an appeal in a matter the court had decided against the client.  The e-mail never left the lawyer's computer system and, eventually, the client lost the right to file the appeal.   Lesson learned:  go "old school" and pick up the phone!

Friday, October 13, 2017

US Supreme Court grants cert to decide whether it is ineffective assistance of counsel to concede client's guilt over client's objection -- UPDATED

The U.S. Supreme Court has granted review in McCoy v. Louisiana in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here. The New York Times also has some information on the case here.

In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, "the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life." 

There is only one problem.  There is no such ethical duty.

The duty of the lawyer is to represent the client and this includes following the client's instructions as to the goals of the representation.

The case presents an opportunity to clarify a terrible old decision of the US Supreme Court called Florida v. Nixon.  In that case, a lawyer attempted unsuccessfully to get his client - also a death row inmate - to cooperate in preparing his defense.  The inmate, who probably had diminished capacity, either did not understand what was happening or did not wish to communicate with the lawyer.  Eventually, the lawyer decided to concede guilt in order to argue for a lower sentence at the sentencing phase of the trial.  On appeal, much of the discussion revolved around whether there is a difference between "conceding guilt" and "pleading guilty."  The distinction is important because the rules of professional conduct explicitly reserve the right to plead guilty to the client.  Simply stated the lawyer has no authority to decide whether to plead guilty without a client's consent.

In a confusing opinion, the Court found that the lawyer had not provided ineffective assistance of counsel.  Yet it is not clear whether the decision was based on either (a) that the decision was for the client to make but the lawyer could make the decision for the client because the client was incapable of communicating with the lawyer or (b) that the decision was for the lawyer to make because it was "tactical" in nature.  If the decision in the case was to plead guilty, then the Court's decision must have been based on option (a), which would be wrong under the rules of professional conduct.  If the decision was "to concede guilt" (meaning something different from pleading guilty, even if the effect is the same) then it can be argued the Court's decision was based on option (b).  

I have never been comfortable with Florida v Nixon for many reasons, the most important one of which is that I don't see the difference between conceding guilt and pleading guilty.  In the end, the Court allowed an attorney to make the most fundamental decision, which is explicitly reserved for the client to make, without client consent.

And now McCoy could be even worse.

In McCoy, the Court is being asked to take the decision in Nixon one step further and allow the attorney to make the decision over the express objection of the client based on the notion that the decision to "concede guilt" is purely tactical and, thus, can be made by the lawyer.  In fact, in affirming the lower court's decision, the Louisiana Supreme Court found no Sixth Amendment violation stating that “[g]iven the circumstances of this crime and the overwhelming evidence incriminating the defendant, admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.” [emphasis added.]

I did not like that interpretation in Florida v. Nixon and I like it even less here.  As explained in the amicus brief of the The Yale Law School Ethics Bureau (available here),
The decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused. ... In this case, Mr. McCoy vigorously and repeatedly expressed his desire to assert innocence at trial. Yet Mr. English [McCoy's lawyer] disregarded those entreaties and readily conceded guilt . By doing so, Mr. English not only betrayed the sacred bond between lawyer and client, but also denied Mr. McCoy his personal right to put on a defense.

[Because of the egregious nature of the ethical failures in this case,] Mr. McCoy was constructively denied counsel. By conceding guilt over Mr. McCoy’s express objection, Mr. English failed to act within the scope of the attorney–client relationship. He was not, in any meaningful sense, acting as Mr. McCoy’s lawyer. Mr. McCoy therefore did not just receive an “incompetent counsel”–he effectively did not receive any counsel “at all.” ...

Additionally, Mr. English failed to subject the prosecution’s case to meaningful adversarial testing. Indeed, far from testing the prosecution’s case, Mr. English seemed downright eager to advance it. He readily conceded Mr. McCoy’s guilt in his opening statement; called Mr. McCoy to the stand only to impeach his credibility; and failed to present any evidence that challenged the prosecution’s theory of the case. ...

Relying on reasoning from the Court’s decision in Florida v. Nixon,... the Louisiana Supreme Court declined to find Mr. English’s conduct presumptively prejudicial. But Nixon only held that a lawyer is not required to obtain affirmative consent from the client before conceding guilt. It expressly did not address the situation presented here, where the client positively objects to conceding. The difference between conceding guilt in the face of a client’s non–response and his explicit objection is crucial; for it is the difference between a reasonable strategic decision based on limited information and total destruction of the attorney–client relationship.
I agree.

Another argument in the case is that the lawyer was compelled to concede guilt because the lawyer did not believe the client's story and, thus, thought the client was going to base his defense on false evidence.

Yet, the rules of professional conduct do not give a lawyer the authority to unilaterally concede a client’s guilt because the lawyer doubts his client’s claim of innocence.  Even if the lawyer believes the client intends to present false evidence, the alternative approaches to the problem provided by the rules do not include conceding guilt.

Whatever the Court decides, this will be a very important decision.

UPDATE (11/25/17):   The ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

UPDATE (January 26, 2018):  The Supreme Court heard oral arguments on the case today.  Here are some comments and links on it.  The oral argument itself is available here.

Wednesday, October 4, 2017

Quick review of the duty of confidentiality

The news that some of Trump's attorneys inadvertently disclosed some confidential information raised issues as to whether the conduct constituted a violation of the duty of confidentiality. I will let you do you own research as to the story and the different reactions to it.  But, here is a quick review of the general principles related to the duty by the Bar Counsel of Vermont, Michael Kennedy.