How not to practice law: after having been told not to coach the witness, go ahead and coach the witness ... and make sure you do it while being recorded

 The Legal Profession blog recently published a summary of a recent case that earns the most recent entry in our "how not to practice law" series.  Here are the basic facts:

The parties are engaged in a "virtual trial" which is being recorded.  The court warns a lawyer not to coach a witness.  Technical difficulties interrupt the trial.  During the break, but while still being recorded, the lawyer coaches the witness in violation of the court's admonition.  The judge then watches the recording.  Guess what happens next.

Dismissal with prejudice.  Go here for the full story.

What should happen next?  Would you represent the client against the lawyer for malpractice?

Podcast on civility in the practice of law

The podcast Reimagining Law dedicated a recent episode to discussing the difference between being a client advocate and overly aggressive, how aggressive behavior impacts legal outcomes and the bottom line, and how the Illinois disciplinary authority is addressing acts of incivility that don’t rise to the level of discipline or an ethical violation.  

Some of the topics covered include:  What is the difference between being a zealous advocate for your clients and being overly aggressive?  How can aggressive behavior impact the bottom line or case outcomes?  Are there issues related to incivility transactional matters for lawyers?  How do clients respond to overly aggressive attorneys?  How do judges respond to such attorneys? What happens when an act or the behavior of an attorney doesn’t quite reach the level of an ethical violation?   You can watch the episode below by clicking the "play button" or you can go to YouTube here.

Court of Appeals for the 9th Circuit reverses conviction because of improper comments by prosecutor

Long time readers of this blog know that I have posted many stories over the years on prosecutorial misconduct including many in which convictions have been reversed simply because of improper comments by prosecutors.  Here is another one.  

The US Court of Appeals for the Ninth Circuit recently overturned a first-degree murder conviction the prosecutor said that the jury could dispense with notions of the presumption of innocence.  Go here for the story.

Reversal of convictions for inappropriate comments is by no means rare, so why does it keep happening?  Because other than reversing the conviction, courts usually don't impose any sanctions on the prosecutors themselves.  Maybe if there was more attention paid to sanctions, there would be less misconduct.  Isn't that the point of saying the deterrence is one of the goals of the disciplinary system?

The case is called Ford v Perry and you can read the opinion here.

Improper comments by prosecutor lead to conviction reversal

Long time readers of this blog know I have posted many stories on prosecutorial misconduct including many in which convictions have been reversed simply because of improper comments by prosecutors.  Here is another one, recently reported in the Legal Profession Blog.  Take a look an you tell me if you think the comment deserved a reversal.

As reported in the LPB, here is how the court explained the issue:

In her closing argument, the prosecutor asked the jury, “Did you watch [Defendant] in the courtroom when [Victim] took the stand? He wouldn’t even look at her. He looked at every other witness in the eye, but he wouldn’t look at her.” The argument had no purpose other than to invite the jury to draw an adverse conclusion from Defendant’s failure to get on the stand and explain why he would not look at Victim as she testified. After Defendant objected, the jury heard the district court overrule the objection, which placed the “stamp of judicial approval” on the improper argument, further magnifying the prejudice. . . .  Having obtained the district court’s stamp of judicial approval, the prosecutor compounded the prejudice by repeating the statement and adding, “And why wouldn’t he look at her? Because he knew what he’d done. He knew what he did.” . . . The prosecutor’s accusatory tone was tantamount to pointing a finger at Defendant.

And based on this argument, the court held that the prosecutor’s arguments violated Defendant’s Fifth and Fourteenth Amendment rights and deprived Defendant of a fair trial, resulting in reversible error; adding that "Prosecutors do not have license to make improper and prejudicial arguments with impunity. We reverse the Court of Appeals holding that Defendant received a fair trial, and we remand to the district court for a new trial."

If this conduct justifies a reversal of a conviction shouldn't it also justify sanctions for violation of Rule 8.4(d) on conduct that is prejudicial to the administration of justice?

What do you think?

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. 

How not to practice law: engage in all types of misconduct during a deposition

As I am sure you know, there are many cases out there that describe inappropriate conduct during discovery in general, and during depositions in particular, but if you are looking for a new one, here you go. 

Last month, William Gallo, a US Magistrate Judge in the US District Court for the Southern District of California, issued a long opinion in a case called La Jolla Spa MD, Inc v. Avidas Pharmaceuticals, in which he orders the defendant’s lawyer to pay out of her own pocket, almost $30,000 in sanctions for conduct the judge referred to as “atrocious.”  The judge also ordered the lawyer to report the sanctions to her home state bar.

The opinion starts by stating that “[t]he lay perception of a “good” attorney is someone who engages in the obstreperous, scorched-earth tactics seen on television and makes litigation for the opposing side as painful as possible at every turn. However, outside the fictional absurdities of television drama, attorneys in the real world—presumably educated in the law and presumably committed to upholding the honor of the profession–should know and behave much more honorably.”

The opinion then goes into great detail to illustrate six different types of conduct that are common to cases in which courts impose sanctions for misconduct during discovery: (1) instructing a witness not to answer based on impermissible grounds, (2) interrupting the deposition to tell the attorney taking the deposition how to ask their questions, (3) engaging in unnecessary colloquy, (4) interrupting the deposition with unnecessary (and long) objections, (5) using objections to suggest to the witness how to answer questions and (6) engaging in harassing and aggressive behavior toward the witness.

Racially charged closing argument leads to reversal of a first degree murder conviction

I have written a number of stories in the past about cases in which appeals' courts reverse convictions simply based on what prosecutors say in their closing arguments.  In other words, cases in which improper arguments result in reversals of convictions.

Just a few days ago, I read another example.  In this case, a prosecutor's racially-charged rebuttal closing argument led to a reversal of a first degree murder conviction by the North Carolina Court of Appeals.  You can read a summary of the case here.

A few stories this week had to do with lawyers getting in trouble for things they said -- UPDATED

A prominent metro Detroit attorney is facing new claims of professional misconduct for allegedly mouthing off to a young female prosecutor and then, in a Facebook rant, misrepresenting what happened.  Here is the story.

The Florida Bar obtained the emergency suspension of a lawyer who attacked opposing counsel on social media.  You can read more about this story here and here.

A state appeals court ruled that a drug court defendant in Washington state is entitled to a new sentencing hearing because the judge who used expletives and said that the defendant was 'just a criminal,' showed “personal animosity.”  Interestingly, the judge had already been admonished in the past because of similar behavior.  He is no longer a drug court judge.  Here is that story.

Finally, a federal judge in San Francisco ordered a lawyer to pay a $500 sanction for discussing irrelevant and banned evidence in her opening statement in a trial.  Here is the story.

UPDATE 3/12/19:  A judge in Texas, has received a public warning for telling jurors that God told him a sex trafficking defendant was innocent.  See more here and here.

How not to practice law: threaten another lawyer with a gun during a deposition

I am sure that there are lots of stories of lawyers threatening to fight during depositions; and, unfortunately even more of lawyers using foul and insulting language.  (Here is an example caught on video).  But today I bring you a story that combines both and takes it a step further.

As reported in the Legal Profession Blog, the misconduct involved a lawyer's behavior during a deposition at his office described as follows:

"When questioning the deponent, [the laywer] used vulgarities, called the deponent derogatory names, aggressively interrupted the deponent and opposing counsel, answered questions for the deponent, and repeatedly made inappropriate statements on the record. [The lawyer] went on to ask the deponent if he was "ready for it" while positioning his hand near his hip. The deponent briefly left the room, but when he returned [the lawyer] displayed a firearm he had holstered on his hip to the deponent and opposing counsel.]

Based on the record, the court called the lawyer's behavior "appalling" and found that there was substantial evidence to support a violation of RPC 8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice). 

The lawyer was suspended for six months and a day.  Do you think the penalty is adequate? 

You can read more about the case here and here.

Magistrate imposes sanctions on lawyer for making too many improper objections during deposition -- UPDATED

I have often complained that judges don't do enough to discourage misconduct by lawyers during discovery in civil trials, which I think is very important because most civil trials settle on the basis of what happens during discovery. 

For this reason, I was glad to read a story in the ABA Journal about a recent case in which a federal magistrate imposed sanctions on New York City because of the conduct of one of its lawyers during a deposition.  The lawyer reportedly made more than 600 improper objections which lengthened the deposition, may have influenced the answers of the witness and prevented the witness from answering questions even though there was no basis to do so.  The lawyer's conduct was so improper that the lawyer taking the deposition had to interrupt the deposition in order to call the judge’s chambers to seek guidance.

The conduct was clearly improper, and I am glad the magistrate imposed sanctions.  I wish, however, that the sanctions could have been harsher.   Unfortunately, given the recent US Supreme Court decision in Goodyear v Haeger, the power to impose sanctions for discovery misconduct is now more limited.  I did not like the result in that case, which I think eliminates one of the few ways in which courts can try control discovery abuse, but that is a different and longer topic.

UPDATE 6/4/17:  The Law for Lawyers Today has a comment here.

Judge declares mistrial in civil case because defendant's counsel made inappropriate comment in front of the jury

Over the years, I have commented on many cases where courts reverse criminal convictions due to inappropriate comments by overzealous prosecutors; but I don't remember having read about a similar result in a civil case.  For that reason, here is an interesting story out of the ABA Journal Online about a Florida judge who declared a mistrial in a tobacco case and ordered the defendant's lawyer to show cause why he shouldn’t have to pay sanctions for the cost of a retrial.  According to the story, in questioning an expert witness, the lawyer affirmed that a jury in a different case had found how many cigarettes a person had to smoke daily in order to become addicted.  The judge reacted to this for more than one reason, the most important being that the statement was not true. 

In addition to causing the mistrial and, perhaps costing the lawyer the bill for the retrial, if the statement was false, the lawyer could be found to have violated, at least, rules 4.1 and 8.4.

Improper comments during trial result in reversal of judgment in civil case

Over the years I have posted lots of links to recent cases in which courts reverse convictions because of improper comments by prosecutors.   This is, unfortunately, not an uncommon occurrence.  Yet, I don't remember a case reversing a judgment in a civil case.  Until now. 

Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer.  In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging.   The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff.  Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.

The case is called Burkert v. Holcomb Bus Service Inc.

Professional Liability Matters has more here.

Reversal of conviction because prosecutor used perjured testimony

The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.  For more details go to the Legal Profession blog.

Podcast on jury nullification

I think the discussion of whether it would be ethical for an attorney to encourage the jury to engage in "nullification" is very interesting.  Unfortunately, we don't have enough time to go cover it enough in class.  For those of you looking for materials to discuss this issue, here is a podcast and discussion I just found in the website The Life of Law.

Illinois disciplinary authority seeks sanctions against prosecutor for improper comments during opening statement

I have reported on many cases where courts reverse convictions because of improper arguments by prosecutors.  Here, here and here are three recent examples.  In many of those cases, however, the prosecutor is not disciplined for the conduct.  Today, however, the Legal Profession blog is reporting that the Administrator of the Illinois Attorney Registration and Disciplinary Commission has filed a formal complaint against a prosecutor for comments made during a murder trial's opening arguments.  According to the complaint, the argument was improper "because it served no purpose other than to appeal to racial prejudice."   You can read the complaint here.

New Hampshire considers new jury nullification statute

In class we discuss the concept of jury nullification and the issue of whether it would be proper for an attorney to ask the jury to ignore the law when deliberating.  As you know, this is an issue that has been around forever and one about there seems to be a never ending debate.  There are organizations devoted to informing the public about nullification and there is literature warning about its dangers.  Now the topic is back in the news because the state of New Hampshire is considering enacting a law that would require judges to inform the jury of its power to engage in nullification.

As you would expect, not everyone agrees this would be a good idea.  An Op-Ed piece in the Chicago Tribune states, for example, that "[f]or judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so."

Over at Gawker, a short article explains how jury nullification can be double edge sword: "Jury nullification seems like a great idea when you imagine using it to free, say, low-level drug offenders who face long mandatory sentences that are fundamentally unjust. It seems like a terrible idea when you imagine racist southern white juries using it to railroad a black defendant just because they don't like his looks."  And then concludes that "[t]he notion that twelve randomly selected citizens are the most effective backbone of a fair justice system is already a bizarre one; to give them explicit instructions to ignore the law if they so choose seems like a dangerous step towards a legal system in which slick rhetoric, outward appearance, and expensive lawyers are more important than the actual law. Uh... even more so than now. If you're a consequentialist, it might be fair to support jury nullification under the assumption that striking a blow against the War on Drugs will do a great deal of good. But the long term consequences of this policy are impossible to know."

I am still undecided on this one...  I am sympathetic to the argument that says that attorneys should be allowed to argue nullification to the jury, but since nullification can be used for evil purposes as well as for good, I have always been afraid of the dangers of nullification.

For this reason, I think I would allow attorneys to decide if they would want to encourage the jury to engage in nullification (ie, I would not consider it improper for them to urge the jury to ignore the law), but I would not favor a statute that would mandate the judge to do so.  I think the decision on whether to present the option to the jury should be a case by case tactical decision left to the defense counsel.

A public defender's comments on prosecutor misconduct

A few minutes ago I posted a note on a recent case on prosecutorial misconduct.  I then found a comment on the case (and more general issues related to due process in our criminal justice system) over at A Public Defender's blog.  That post is available here.

Conviction reversed - but no sanctions imposed - for prosecutor's improper comments

The Legal Ethics Forum recently posted a link to a story in the Connecticut Law Tribune about a decision of the state's supreme court overturning a conviction because of a prosecutor's improper comments.  Specifically, the prosecutor claimed the prosecutor acted improperly by repeatedly asserting during her  closing argument that both the defendant and his lawyer were asking the jury to "condone child abuse," that the defendant's testimony was "coached," and that the defense strategy was a game of "smoke and mirrors."

The court's opinion is available here.  The court's analysis on the question of the improper comments starts on page 11.

This is an interesting question.  I am not too bothered by the "smoke and mirrors" comment.  Even though it is clear that a prosecutor is not allowed to express his or her opinion on the credibility of a witnesses, I think this comment is within the acceptable limits of rhetoric.  It is just a way to say that the defendant's evidence is weak and that the juror's should not be confused by it. 

The comment on "coached" testimony is a closer call because it does come close to being an opinion on the credibility of the witness and suggests unethical conduct of the defense attorney.  It does sound like the prosecutor is saying "I believe the witness was not telling the truth."  However, I am not sure the comment was quite that clear.  Obviously "coached" is a term that has negative connotations but it seems to me it is just a comment on the demeanor of the witness and the general credibility of the testimony.  If that was all there was, I am not sure I would have overturned the conviction.

The first comment (the one about condoning child abuse), though, is of a different nature.  First of all, although it sounds like a statement of fact, it also was really a statement of opinion, and that opinion was questionable.  Second, it was probably not based on the evidence.  Third, it was used to stir emotions,  And, lastly, it was a cheap shot at the defendant's lawyer.

Based on this one comment, I agree the conviction should have been reversed. The court's analysis is very good.  The only thing I would add is that I think the court should have imposed sanctions on the prosecutor.  

How should you behave during court appearance

A few basic tips here.  My students will appreciate the first rule under "school rules."

Is it misconduct for a lawyer to ignore rule against including a claim for a specific dollar amount in a complaint?

Eearlier this week the New York Daily News reported on a recently filed claim alleging that energy drink Red Bull contributed to the death of a 33 year old man.  The story's headline read: “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”    Claims that energy drinks can contribute to someone's death have been circulating for some time now, so the allegation is not new.  (For more on that go here.)
 
What is interesting (for the purposes of this blog) is the fact that the complaint specifically asks for $85 million in compensation.  This is interesting because the practice of asking for a specific dollar amount in a complaint has been banned in New York (where the case was filed) for 23 years.  And yet, as NY blogger Eric Turkewitz adds, "some lawyers still put that clause in. Why? There are only two possible reasons . . . : Either the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue." 

Eric's post is worth reading here.  He goes one to argue, correctly in my view, that the emphasis on the amount of the claim detracts from the seriousness of the issue.  The story now becomes one about how much money the plaintiff's lawyer wants instead of one about whether a product is in fact dangerous or whether the defendant should change the way it markets the product.