Sunday, April 26, 2020

Ethics opinion on working from home (because of the pandemic) -- UPDATED

The Pennsylvania Bar Association has issued an ethics opinion intended to provide guidance now and into the future on working from home and other remote locations.  You can read it here.  It discusses issues and concerns related to confidentiality, competence, supervisory attorneys, and proper use of technology.

Law Sites has a summary here.

UPDATE 4/26/20:  LexBlog has a comment here.

UPDATE 5/2/20:  Legal Ethics in Motion has a comment here.

Thursday, April 23, 2020

District court denies (partially) motion to dismiss in case against prosecutors for using fake subpoenas and threats to trick witnesses and victims into cooperating with investigations - UPDATED

Long time readers of this blog know that I have reported on a number of cases documenting the misconduct of prosecutors in New Orleans.  (See here.)

Earlier this month, I heard about a new similar case making its way through the courts.  In this case, the plaintiffs allege that the Orleans Parish DA's office for years have been using fake subpoenas to coerce cooperation from witnesses and victims of crimes.  According to the allegations, prosecutors sent out bogus subpoenas -- bearing threats of fines and imprisonment -- to hundreds of witnesses, even though the subpoenas had not been approved by courts overseeing the ongoing prosecutions. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.

Several lawsuits followed, and the District Court of the Eastern District of Louisiana recently decided a motion to dismiss in one of them.  It held that the prosecutors had immunity for some of the alleged conduct, but not for all.  In fact, the court held that the individual defendants are not entitled to absolute immunity for their alleged role in creating or delivering “subpoenas” to victims and witnesses of crimes.

Typically, prosecutors have absolute immunity for their work as litigators, but only qualified immunity for their work as members of the law enforcement team, or as investigators.  It is often not easy to determine when one role ends and the other begins, which is why, as you would expect, there is quite a bit of case law on the subject.  But, in this case, it looks like the court thought that creating and delivering the fake subpoenas was part of the pre-litigation state of the building a case.

Evidently, the plaintiffs will still have to deal with the defense of qualified immunity, but it will be interesting to see how the case develops from now on.

You can read the court's opinion here.   Tech Dirt has a comment on the case here.

UPDATE (2/16/20):  ABove the Law has a comment on the case here.

UPDATE (4/23/20):  the Fifth Circuit Court of appeals affirmed the lower court.  Bloomberg has the story here.

Thursday, April 9, 2020

More on the topic of the practice of law during the pandemic - UPDATE x2

The original message and first update appear below. 

TODAY'S UPDATE (4/9/20):   Friend of the blog and Bar Counsel for Vermont, Michael Kennedy continues his shelter in place "CLE From my Garage" series with a very good program on legal ethics issues and the pandemic in his new YouTube channel.  You can watch the program here.  And you can catch all his programs in his channel here.

March 30, 2020

Here are a few articles and comments published in the last few days on the practice of law and the pandemic:

Quandaries and Quagmires: Legal ethics, risk management in pandemic (Minnesota Lawyer)

The Impact Of COVID-19 On Law Firm Practices (Above the Law)

Biglaw Firm Cuts Back Partner Compensation Amid COVID-19 Economic Upheaval (Above the Law)

UPDATE (4/4/20):

Attorney Ethics Considerations in the Age of Coronavirus (LexBlog)

4 Ethical Questions For Operating a Virtual Law Office   (Illinois Law Now)

Wednesday, April 8, 2020

Illinois Supreme Court Commission on Pretrial Practices Releases Final Report on Criminal Justice System

The Illinois Supreme Court Commission on Pretrial Practices has released its final report concerning pretrial reform in the Illinois criminal justice system.  For more information go here.  You can read the report here.  For the preliminary report and other sources of information go here.

Tuesday, April 7, 2020

What Are The Differences Between the ABA Model Rules and the Louisiana Rules?

If you ever need to figure out the differences between the ABA Model Rules and the Louisiana Rules, here is a video that explains them.

Monday, April 6, 2020

Two courts uphold public defenders' ability to limit caseload

The Legal Profession blog recently reported two different instances where courts in Wyoming and Massachusetts recognized that public defenders should be allowed to refuse new cases. 

In the Massachusetts case, the attorney in charge informed the First Justice of the Springfield District Court that staff attorneys in the Springfield Public's Defenders' Office could not handle any more duty days in that court. In response, the district court ordered that the public defender continue to accept appointments.  The Supreme Court reversed holding that "to the extent such an order may require . . . staff attorneys to accept more appointments than they can reasonably handle, it risks interfering with their ethical obligations under the Massachusetts Rules of Professional Conduct to act with reasonable diligence and promptness in representing their clients, and thereby threatens to undermine the very right to counsel that the order seeks to protect."

In the Wyoming case, State Public Defender Diane Lozano notified the Circuit Court of the Sixth Judicial District that until further notice, the public defender was not available to take appointments to represent misdemeanor defendants due to an excessive caseload and shortage of attorneys in its Campbell County office. Shortly thereafter, the circuit court entered orders appointing Ms. Lozano, or her representative, to represent misdemeanor defendants in two cases. When the local public defender’s office declined the appointments, the court held Ms. Lozano in contempt. The Supreme Court reversed, holding that "[t]he public defender is in the best position to know its resources, including its attorneys, the skills and experience of its attorneys, and the weight and complexity of each office’s caseload."

Further, the court explained that "Ms. Lozano testified concerning the public defender’s caseload policies and that the Campbell County office was at 168% of the maximum caseload. Counsel for the Wyoming State Bar testified that the public defender’s policies on caseloads “support a way of measuring when an attorney’s caseload gets to the point where the attorney has no ethical choice but to decline representation.”"

Based on that, the court concluded that the public defender has discretion to decline an appointment or appointments and that in exercising that discretion, there is no requirement, statutory or otherwise, that the public defender show an individualized injury in fact or meet the Strickland post-conviction showing of prejudice.