Wisconsin reaffirms that criminal defendants must show actual innocence to support malpractice claim against former defense counsel

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel.  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

I am writing about this again today to report that earlier this month, the Supreme Court of Wisconsin reaffirmed its position on this in a case called Skindzelewski v. Smith, which you can read here.

New Jersey considers adopting exception to duty of confidentiality to prevent or remedy wrongful convictions

Long time readers of this blog might remember an incident reported a few years ago out of Chicago that involved two lawyers who came forward to disclose that they knew that a man named Alton Logan had been convicted (and sentenced to life) 26 years earlier for a crime he did not commit.  The lawyers had not disclosed the information sooner because they had obtained the information from one of their own clients, who had confessed to them that he had committed the crime for which Alton Logan had been convicted.

At the time of the confession, the lawyers tried to obtain consent from their client to disclose the confidential information, but they were only able to get him to consent to disclose after his death...  and then he proceeded to live for another 26 years.

When the lawyers finally came forward, the incident got national coverage (including a segment in the TV show 60 minutes) and sparked a debate on whether states should recognize an exception to the duty of confidentiality to allow lawyers to disclose information when reasonably necessary to prevent or remedy a wrongful conviction.

Attempts to amend the ABA Model Rules for this purpose have never progressed very far within the ABA, but there are two states that currently recognize such an exception (Massachusetts, and Alaska).  Soon there may be three.  (North Carolina has a rule imposing a duty to disclose information but, oddly, it does not operate as an exception to the duty of confidentiality because it does not allow disclosure if the disclosure is against the interest of a client or former client.)

The New Jersey Supreme Court recently published a task force report with a recommendation to adopt an exception to the duty of confidentiality to require lawyers to disclose information that demonstrates that an innocent person has been wrongly incarcerated.

The recommendation, however, was not unanimous and there is a strong dissenting opinion. Also, the task force members who were in the majority were divided on whether the exception should be mandatory or permissive.

You can read the report here.

Recognizing that lawyers who reveal client confidences to remedy a wrongful incarceration necessarily harm their own client, the majority concludes that that disclosure of such information strongly serves the interest of justice and enhances public confidence in the criminal justice system. "On balance," the report states, "an exception for this purpose is justified because the suffering of the wrongly incarcerated person is great, while the universe of confessing clients is likely to be exceptionally small."

The exception to the duty of confidentiality related to wrongful convictions in two of the three states that currently have such an exception is permissive.  In North Carolina, there is a mandatory duty to disclose, but it has such restrictions that make the duty a very limited one.  As stated above, the rule does not allow disclosure if it is against the interest of a client or former client, which means that the disclosure is not allowed as an exception to the duty of confidentiality.

Interestingly, the New Jersey task force members who support the adoption of a new exception to the duty of confidentiality were divided on whether the new rule should be mandatory or permissive.  The majority proposed a mandatory duty to disclose, but again, this was not a unanimous position.

In contrast, a strong minority of the task force, including representatives of the Offices of the Attorney General and Public Defender, opposes a new exception to the duty of confidentiality arguing that lawyers should not disclose (much less be forced to disclose) information that is likely to expose their clients to criminal liability because the proposed exception would require lawyers not only to betray their clients, but also to inflict direct harm on them.

This is a very difficult question for me because I can see the strengths in both sides of the argument and, for that reason I have changed my mind back and forth thinking about it over time.

Given the inadequacies of our criminal justice system, I find the argument for an exception compelling but I can also see the obvious clash with one of the most fundamental values that we hold as a profession.

So, help me decide.  What do you think?

How to ethically respond to negative reviews from clients

The ABA Journal has published a short article on "dos and don'ts" for when lawyers want to reply to a negative online review.  You can read the full article here.

Colorado Supreme Court holds that a man convicted by a jury that included judge's wife isn't entitled to new trial

Reading some old news I came across this headline:  "Man convicted by jury that included judge's wife isn't entitled to new trial..."  Here is the story.

Prosecutorial misconduct

For those of you interested in prosecutors' ethics, I recently found this collection of short podcasts discussing instances of possible prosecutorial misconduct in Illinois. 

Permanent disbarment

As you probably know, but is often misunderstood by those outside the profession, disbarment is more often that not NOT permanent. In most states, disbarred lawyers can ask to be reinstated and they often are.  So it is a bit rare to read about a case in which the order disbarring an attorney also bars the attorney from ever seeking reinstatement again.  If you want to see an example of such a case, go here.

12 tips to help you avoid disciplinary proceedings

Here is a short article on tips to help you avoid disciplinary proceedings.  The tips are good ones:

1. Implement Strong Law Office Management Procedures

2. Intake Is Critical

3. Client and Third Party Funds and Property Are Sacrosanct 

4. Communicate, Communicate, Communicate

5.   Be Diligent

6. Be Honest

7. Honor Client Confidences

8. The Internet Is Not a Safe Haven

9. Conflicts of Interest Are Real

10. Be Civil and Professional

11. Take the Time to Think It Through

12. Stay Current

US Supreme Court denies review of mandatory bar membership case

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  See here and here for example.  My most recent post on this was on the case from Wisconsin in which two Wisconsin attorneys argued that a requirement to be members of the bar association and pay dues violated their First Amendment rights. See here.

Last Monday, the US Supreme Court on Monday denied a request to hear that Wisconsin case.  Justices Thomas and Gorsuch dissented.

For more on the story go to the SCOTUS blog, here, and to Courthouse News Services, here.  Jurist has a short report here.

ABA issues new formal opinion on Model Rule 1.18 and the duties owed to prospective clients

A couple of days ago, the ABA Standing Committee on Ethics and Professional Responsibility issued formal opinion 492 in which it discusses the duties owed to prospective clients under MR 1.18.  I don't think it says anything we did not know already.  Here is the summary:

A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter. Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).

You download or read the opinion here.

The ABA Journal has a story here.

Washington State (prospectively) terminates its pioneering program of non-lawyer technicians (LLLTs)

Long time readers of this blog will remember that I have posted many comments about or related to Washington's program that allows non-lawyers to provide certain limited legal services.  When it was created, it was the first of its kind and was widely celebrated as a good idea that would facilitate access to legal services and therefore help "bridge the gap" between available legal services and unmet legal needs.  It was expected to grow over time and since its creation, several other states adopted similar models.

So, I am not happy to report that in a surprise move (at least to me), the Washington Supreme Court has decided to terminate the program.  Or, maybe "terminate" is not the right word because current legal technicians in good standing may continue to be licensed and may continue to provide services. Individuals already in the pipeline as of June 4, 2020, who can complete all the requirements to be licensed as a LLLT by July 31, 2021, may do so. No new LLLTs will be admitted after that date.  The ABA Journal has more details on the story here.

In a very short letter to the director of the program, the Chief Justice of the state supreme court explained that

The LLLT program was created in 2012 as an effort to respond to unmet legal needs of Washington residents who could not afford to hire a lawyer. Through this program,  licensed legal technicians were able to provide narrow legal services to clients in certain family law matters. The program was an innovative attempt to increase access to legal services. However, after careful consideration of the overall costs of sustaining the program and the small number of interested individuals, a majority of the court determined that the LLLT program is not an effective way to meet these needs, and voted to sunset the program. 

I am disappointed that the program did not survive.  I am now even more interested to see how similar programs do in other states.  I am also curious to see if Washington will try to come up with an alternative.

The vote to end the program was not unanimous and in a separate letter, Justice Barbara A. Madsen said that she “passionately” disagreed with the court’s vote stating that "[t]he elimination of the LLLT license, which was created to address access to justice across income and race, is a step backward in this critical work. It is not the time for closing the doors to justice but, instead, for opening them wider.”  You can read the full letter here.

LawSites has a comment here.

Trying to catch up!

It has been a very busy three weeks (for me personally and for everyone else around the country) since I last posted a comment here, but I am now caught up with work and other things, so I am going to try to catch up with recent developments in professional responsibility.