Technical problems with the blog

For the second time in just a few weeks, I have been experiencing serious technical problems with the system that hosts my blogs (ie, "Blogger"). I have enjoyed using Blogger and I like many of its features but I am becoming increasingly frustrated with the problems I am experiencing. The last time I had problems, Blogger was updating some features and the problems resolved themselves after a few days. I am hoping this is the case again. Otherwise, I may not be able to post new information for a few days and I may soon be looking to move the blogs to a new system or stop blogging altogether. If you have any comments or suggestions please send them to me by email.

UPDATE: The next big thing: whether to allow non-lawyers to own shares of law firms

A few months ago, I thought that "the next big thing" in legal ethics was going to be a debate over whether to allow the use of screening to avoid concurrent conflicts of interest in some cases.  I may be wrong.  It is starting to look like the next big thing is going to be a debate about whether nonlawyers should be allow to own equity stakes in law firms.

One reason this has not been allowed up to now is to avoid the possibility that non-lawyers - essentially "investors" in the firm - or the need for investors might compromise the lawyers' independent professional judgment. 

This concern is not trivial in my opinion.  But, as the Wall Street Journal reports today (here and here), pressure is building in the business to let law firms raise capital from nonlaywers. Yesterday, plaintiffs’ firm Jacoby & Meyers filed suits in New York, New Jersey and Connecticut claiming that their state rules barring outsiders from owning stakes in firms unconstitutionally restricts interstate commerce.  For more on the story, go to the Legal Ethics Forum (here)

If successful, this case could lead to the most significant change in which law is practiced in the United States in many years.

The Commission in charge of reviewing and revising the ABA Model Rules just announced it will hold a meeting to discuss this issue during the upcoming annual meeting of the Center for Professional Responsilbity in Memphis, June 1-4.  For information (and to register) for the annual meeting, go here.

UPDATE (5/20): Blogger Eric Turkewitz has a comment on the idea of allowing non-lawyers to acquire shares in law firms here and here (hint: he is against it).

IL lawyer in trouble for deception in the process of investigating compliance with the law

An Illinois Assistant Attorney General is the subject of an interesting ethical charge after allegedly using a "ruse” to gain evidence against a condominium project for lack of handicapped access.  He is accused of entering the premises under the false pretense that he was looking for a condo for his grandmother. More on the story here.  The complaint is available here.

This is an example of an old question: whether it is ethical to engage in some level of deception in order to confirm whether someone else is discriminating.

Assuming all the facts are true, the lawyer in question was, in fact, dishonest.  But he was dishonest "with good intentions" or for a good reason -- in order to find whether the other party was violating the law.

In part, the solution to the problem might be simply to let others do the investigating or, as in this case, the "testing."  Attorneys should stay out of it and wait until the information is gathered to intervene in the prosecution.  On the other hand, an attorney can't ask someone to do something the attorney can't do himself, so I am not sure where that leaves the attorney who needs to engage in some level of deception to gather the information.

Any thoughts?

Michigan adopts waiting period rule

The Michigan Supreme Court has adopted a new version of Rule 7.3 that prohibits solicitation of accident victims within 30 days of the accident or injury. The rule will implement regulation that is permissible in light of the Supreme Court's decision in Florida Bar v. Went For It.  The decision was not unanimous, though.  There are dissents. For more on the story and a good quote from one of the dissenting opinions, go here. 

Florida Bar v. Went for It is a terrible decision.  It is illogical and inconsistent with prior precedent.  It therefore set a bad precedent and it is not encouraging to see states following it.  But it is what it is.  It is still the law of the land. 

I have not seen the new Michigan rule so I can't comment on it.  The one thing I do hope is that it, at least, applies to both plaintiffs and defendants' lawyers.  This was one of the main problems with the rule in question in Went for it.  Because of its wording, it only applied to plaintiffs' lawyers leaving victims vulnerable to personal visits by defendants' lawyers.  The rule simply did not advance the state interest in protecting the victims from intrusion.  This was a fatal flaw in the rule that the Court chose to ignore.  I hope the Michigan Court has not ignored this point.

Michigan Attorney Discipline Board finds flat fees are not earned upon agreement

Here is yet another comment on the character of flat fees.  I have commented on this issue several times before, most recently here. 

In this case (available here), the attorney and client agreed to a flat fee.  The attorney began to work on the matter but failed to follow through on it.  He then claimed that the fee had been earned on receipt.  The Board disagreed and stated that "Respondent's primary argument is that "there can be no unused [or unearned] portion of a 'flat fee' " This is simply erroneous as a matter of law. It would be absurd for the law to provide, as respondent argues, that " [t]he total fee was due (earned) the moment the attorney began any work on the file." This would enable an attorney to begin an agreed upon representation, abandon it, and retain the entire fee as if the whole of the work had been completed. For obvious reasons, this has never been the law..."

This is the logical result for the circumstances of the case.  Otherwise, as the Board correctly points out, attorneys would be free to disregard the client's matters and collect the fees anyway. 

Thanks to the Legal Profession blog for the information and link.

Lawyer’s License Revoked After Panel Finds He Hid Funds During His Divorce

Here is a good reminder of the fact that a lawyer's conduct outside the practice of law can result in professional discipline.  In this case, a lawyer’s license was revoked because he attempted to hide assest during his divorce.   Go here for the full story.

Interestingly, the attorney for the disciplined lawyer is quoted as saying that "the discipline is unusual because the facts related to the revocation are from a personal divorce, not mishandling a client's case. This had nothing to do with his performance as a lawyer."

Although he is correct in stating that the sanctions are not related to the lawyer's performance as a lawyer, he is wrong is claiming this is unusual.  It is pretty well known that a lawyer can be disciplined for conduct outside the practice of law, as long as the conduct in question relates to the lawyer's character or ability to practice law.  The conduct in this instance brings into question the lawyer's honesty, integrity and respect for the legal process.  Obviously, these are pretty relevant factors to consider when deciding whether a lawyer's conduct calls for discipline.

There may be an argument as to the severity of the sanction imposed, but that is a different matter.  I see no problem with the fact that a sanction was imposed.

UPDATE on the story "Bloggers get sued for expressing their opinion on conduct of another attorney"

In an interesting bit of news, a lawyer whose conduct was ctiricized by the press and bloggers over the internet has sued 74 defendants including several bloggers whose blogs I follow regularly. 

At the risk of getting added to the lawsuit, I will repeat part of the story here.  The story apparently started with an article in the Washington Post that stated that a Superior Court judge in Washington DC declared a mistrial in a murder case in which the judge thought the attorney exhibited "numerous signs that he [the attorney] lacked knowledge of proper trial procedure" and that went on to say that the judge told the attorney "during a hearing . . . that he was “astonished” at his performance and at his “not having a good grasp of legal procedures”".  Here is a link to a comment by one of the jurors in the case.  (Thanks to Simple Justice for the link.)

Following this story, a number of bloggers commented on the lawyer's conduct.  The news today is that the attorney has fired back by suing them for defamation.  Two of those bloggers have commented on the situation here and here.  This second comment, in the blog "Simple Justice", is really worth a look.  It opines that "[t]he substance of the action is not merely frivolous, but the action was brought in New York Supreme Court, and had [the plaintiff's] lawyer done some homework, he would [have] learn[ed] that New York's long arm statute expressly excludes defamation."  Simple Justice then identifies the plaintiff's attorney and quotes his ads on CraigsList and in the Pennysaver, which is pretty interesting.

UPDATE (May 18): Eric Turkewitz, one of the bloggers sued, has posted an great response (with links to more information) to the lawsuit here.  It is very much worth reading.

Go here for a list of posts on the case.

Lawyering can be dangerous

Here is an interesting headline from today's news:  "Man Who Stabbed His Lawyer With a Pencil Stabs His New Lawyer With a Pencil."  Go here for the full story.

More thoughts on the inconsistency of sanctions- UPDATED

I have often commented on inconsistencies regarding sanctions among jurisdictions and sometimes within jurisdictions.  Most recently, I mentioned (here) a recent decision by an Illinois Hearing Board that discussed the conduct of an attorney engaged in what the Board called "extremely serious" ethics violations which the Board also found were aggravated by a series of important factors, including the fact that the lawyer did not show any remorse for the impact his actions had on his clients or on the legal profession that the fact that he had been disciplined in the past.  Yet, having described the conduct as "extremely serious" and having found aggravating factors, the Board imposed a mere one year suspension. One would think that misconduct described as that serious would have resulted in a higher level of discipline.

I am glad to see now that I am not alone in my frustration with this issue.

Here is another case, courtesy of the Legal Profession blog.  In this one, a New Jersey attorney was suspended for abandoning a client in a family law matter and defaulting in the ensuing proceeding before the Bar. Although the Disciplinary Review Board found that the attorney had shown "nothing but disrespect - indeed, insolence - in his dealing with the disciplinary system", the Board said the conduct would merit merely a three month suspension.  To this, Mike Frisch, of the Legal Profession blog, replies, "[i]f abandoning a client and ignoring a bar complaint normally merits a three-month suspension, New Jersey needs a new normal."

And, today, over at the Legal Ethics Forum, Prof. Stephen Gillers expresses his frustration with the problem stating,

"In reviewing several years worth of disciplinary opinions from courts around the nation in connection with a writing project, I was struck again by a disturbing pattern. . . . 

The courts' opinions first tell a really awful story about professional or personal misconduct, sometimes sordid or tawdry, sometimes thieving, sometimes duplicitous. The opinions lay it all out and as readers we are led to expect a proportionate sanction.

 But then comes that frequent phrase "an unblemished record," a phrase one rarely sees elsewhere in life or law, sometimes accompanied by "no prior discipline" (which more often than not may mean the lawyer has not heretofore been caught), and perhaps a citation to character testimony.

And although the reader had been led to expect disbarment or a long suspension for the bad behavior so abundantly detailed . . . he or she finds instead the most modest of sanctions -- a public reprimand or a suspension the length of a nice vacation.

I sometimes wonder if we should just forget the sanctions and instead require the lawyer to give the court's opinion to all present and prospective clients. It might better protect the public."

Go here to see comments posted in the Legal Ethics Forum in response to this comment.

UPDATE (5/16):   Mike Frisch, of the Legal Profession blog, replies to Giller's last comment by stating that "[w]hat is really needed to protect (or at least forewarn) the public is ready and easily available online access to complete information about bar sanctions. Not summmaries, but the actual opinions, informal admonitions, hearing reports, review board reports, court decisions--the full package. . . . Unfortunately, the reality is that many jurisdictions make this kind of information either difficult or impossible to find. Until that situation is rectified, bar discipline will be as much about the parochial, self-interested concerns of the Bar rather than (as every opinion on the subject claims) the protection of the public."

Conviction reversed because of judge's comments

Prof. Jonathan Turley is reporting today on a case out of Oklahoma where a murder conviction was overturned due to the comments at trial by the Judge. The appeals court found the judge's comments to be “a misstatement of the law that was an inherently coercive intrusion into the jury’s deliberative process.” Interestingly, this is not the first controversy for the judge who was previously asked to step down in a criminal trial after allegedly using an offensive term to describe illegal immigrants.  Go here for the full story.

Video of oral argument on sanctions and other interesting issues

The Illinois Supreme Court just heard oral arguments in a case where the administrator of the state's disciplinary authority is appealing a ruling arguing that the sanctions imposed in a particular case were too lenient.  You can watch the video by going here, or, if you prefer just the audio, you can go here.  Surprisingly, the attorney facing the sanctions represents himself!

The case (In re Mulroe), is about an attorney who mishandled a client's money.  To make a long story short, he deposited it into one account, then moved it around into other accounts and eventually took too long to repay it.  He apparently had very sloppy accounting of the money in all his accounts and was guilty of commingling at the very least. It sounds like he had a number of accounts, kept money in all of them and moved the money around using it for whatever he needed to use it at the time.  He claimed he always had enough money, but that was adding the funds in all his accounts at any given time.

The disciplinary authority found the attorney had violated the rules and imposed sanctions but also found that the conduct was not "dishonest" - that it was the result of sloppy bookkeeping rather than of intent to convert the client's funds.  The administrator appealed arguing the sanctions should more severe because the conduct should be considered to be dishonest.  In fact, he argued the conduct was the equivalent of misappropriation.  The administrator argued that the lawyer engaged in a willful violation of the fiduciary duty to maintain client's funds properly.

Interestingly, the controversy seems to revolve around whether the conduct was "dishonest."  In my opinion, however, the better way to approach the issue would be to adopt the view of the ABA Standards for Sanctions which is based not on a value judgment of the character of the conduct but on the “mental states” of the lawyer who engaged in it. 

The ABA Standards recognize three different mental states: intent, knowledge and negligence.  In this case, the administrator is arguing that the attorney acted with "knowledge" while the attorney argues he was merely negligent. 

If you listen to the argument you will hear how at one point the discussion seems to be heading that way, although by raising another alternative mental state: "recklessness."  One of the justices asks the attorney point blank if the conduct does not show that he was reckless which makes the attorney look very uncomfortable.

I have always had a problem with the term recklessness (particularly in torts) because it can only be defined as either a high degree of negligence or as disregard for the consequences of the conduct.  If it is the former, it is negligence; if it is the latter, it is knowledge.  So I am afraid "recklessness" adds nothing but confusion to the issue.

The oral argument is long (almost one hour), but it is worth watching.

How to inflate your legal bills

Here is an interesting article from Forbes that describes some ways in which some lawfirms inflate their fees.  The article is called “Grazing,” Photocopying And Other Tricks Inflate Legal Bills but the most interesting method described is charging clients for the use of conference rooms.  According to the article, "some law firms ... form separate LLCs to rent out their conference rooms, turning them into profit centers instead of a cost of doing business." I have to admit, I had not heard that one before.

Thanks to the Legal Ethics forum for the link.

Court of Appeals affrims conviction even though the defendant had been forced to go to trial on the same day he met his lawyer for the first time

The Legal Profession blog is cmmenting today on a case in which the New Jersey Appellate Division affirmed a drug possession and distribution conviction despite the fact that the defendant and his attorney met for the first time on the morning of the suppression hearing and trial. The court majority concluded that the defendant failed to demonstrate ineffective assistance of counsel or other prejudice. The trial judge scoffed at the need for any preparation, likening a drug case to an intersection collision civil trial. 

It makes me sick to hear that a judge would force a lawyer to represent a criminal defendant without preparation.  What kind of system is that?  What kind of moral grounds do we have to say that our criminal justice system is fair?  This is ridiculous.

One of the justices dissented stating "I deem it self-evident that a rational and just criminal justice system cannot accept as valid a conviction predicated on a scenario in which a defendant, through no fault of his or her own, meets his or her lawyer for the first time on the day the case is scheduled for trial" and concluding that "A system of criminal justice that permits a conviction to stand in a case where an indigent man, through no fault of his own, meets his attorney for the first time on the day the case is scheduled for trial, carries with it the indicia of a "show trial," a sham proceeding in which the outcome is perceived as predetermined."

Some of the issues raised by the different approaches to flat fees

In her blog My Shingle.com, attoreny Carolyn Elefant has posted a very good short comment that puts in context some of the questions about flat fees that I have been discussing in previous posts.  Go here to read her post. 

As I have argued in the past a number of jurisdictions have taken an approach to flat fees that eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing.  As Ms. Elefant points out in her questions, this creates a number of problems for attorneys seeking to use flat fees.  For example, she asks about the language to be used in a retainer agreement that will allow the lawyer to keep the full fee if the case does not go to trial (and arguably, at least some of the fee is “unearned”). 

For some of my previous comments on this issue (and links to others) go here, here, and here.

When should the statute of limitations begin to run on a legal malpractice claim? Two views on "the continuous representation doctrine"

The legal malpractice law review blog is reporting on two cases that illustrate two very different approaches to the issue of the application of a statute of limitation in a legal malpractice action.

In  Laclette v. Galindo, 184 Cal. App. 4th 919 (2010), the court held that the continuous representation doctrine will toll the statute of limitations in a malpractice action for the period of time the attorney is listed as counsel of record-- even where no active representation is undertaken.  (See here.) 

Meanwhile, in Bennett v. Hill-Boren, P.C., 52 So. 3d 364 (Miss. 2011), the court held that the statute of limitations begins to run on the date the client reasonably should have known that the lawyer was negligent.  (See here.)

Two cases illustrate issues regarding sanctions

I have often commented on inconsistencies regarding sanctions among jurisdictions and sometimes within jurisdictions.  Here are two separate news items that help illustrate the issue once again.

In the first one, the Legal Profession blog is reporting on a case in which an attorney who was suspended for a year and a day in Colorado was then disbarred as reciprocal discipline by the Maryland Court of Appeals (the opinion is available here).  The court is correct in pointing out that it is not required to impose the same sanction imposed by the original discipling court.  But, one wonders why the courts reached such different results.  There is a huge difference between a one year suspension and disbarment.

The other item comes from Illinois where a recent decision by an Illinois Hearing Board recommended a one-year suspension of an attorney who engaged in a wide array of what the Board called "extremely serious" ethics violations that included conflicts of interest and dishonesty to courts. The Board also found there were important aggravating factors including the fact that the lawyer did not show any remorse for the impact his actions had on his clients or on the legal profession that the fact that he had been disciplined in the past.  The question this case raises in my mind relates to the severity of the sanction.  If the conduct was "extremely seriuous" and there were aggravating factors, how come the sanction is merely a one year suspension.  One would think that misconduct described as that serious would have resulted in a higher level of discipline.

In the end, as I tell my students, you can never truly predict what the sanctions will be, which means, regardless of what the conduct is, you always risk disbarment.

How not to practice law: start before you are admitted to the bar

Here is a good story for law students out there:  do not start offering legal advice and acting like a lawyer until you are one officially.  The Legal Profession blog is reporting on a case in which an attorney] was suspended for one for offering legal advice to a prospective client before she was admitted even though she  truthful when she told the possible client that she had a law degree and had passed the bar exam, but was awaiting a background check.  Whatever she said, she held herself out as an attorney when she wasn’t entitled to practice and that is all that matters.  Easy solution; don't do that!

A different type of prosecutorial misconduct

Three of my most recent posts have been about prosecutorial misconduct.  Usually, this topic relates to conduct of prosecutors as they investigate or litigate criminal charges.  Here is a story about a different type of prosecutorial misconduct: abuse of power.  Prof. Jonathan Turley is reporting that a (now former) prosecutor in Tennessee has been charged with official misconduct for allegedly offering leniency in exchange for sex with defendants or their mothers.  Go here for the story.

Justice Stevens on prosecutorial misconduct

A few days ago, I posted that I felt I had been wrong to speculate that the Supreme Court actually wanted to address the problem of prosecutorial misconduct (see here). Well, it turns out maybe I was just partially wrong... in a way...

In a speech Monday night to the Equal Justice Initiative, retired Justice John Paul Stevens criticized the Court's decision in Connick v Thompson stating that it and other decisions have given local prosecutors impunity for violating constitutional rights.   Go here for the full text of the speech. (Thanks to the Wall Street Journal law blog for the link.)

The Wall Street Journal law blog and the Blog of the Legal Times have more on the story.

Short deposition transcript

Short deposition in a divorce case.... WARNING: vulgarity and foul language ahead. Go here for the transcript.

How not to practice law: don't pay your student loans

The Legal Profession blog is reporting on a recent decision by an Illinois Hearing Board recommendeding a suspension of six months of a 1994 University of Chicago law grad for bad faith failure to repay student loans. Go here for more information. Go here for the opinion itself.

Prosecutorial Misconduct

Long time readers of this blog might remember that I often referred to 2010 as the year of prosecutorial misconduct. There were so many scandals it seemed that the topic was in the news constantly. As 2009 ended, the US Supreme Court heard oral arguments in what seemed to be a pretty important prosecutorial misconduct case (Pottawattamie County, Iowa v. Harrington), but then it settled.

Almost as soon as it settled, though, the Court granted review in another misconduct case (Connick v Thompson). I immediately speculated that the Court was just looking for a case to comment on the issue and to criticize what seemed to be widespread prosecutorial misconduct.

It is now pretty clear I was wrong. The Court decided Connick without making any comments about prosecutorial misconduct in general. For the majority, the facts of the case were an isolated - one time - incident.

There may be other opportunities for the Court to express itself on this growing issue, but I am not going to hold my breath.

Here is a link to a recent article by Erwin Chemerinsky, Dean of the UC Irvine School of Law, called "Head in the sand over prosecutorial misconduct" in which he criticizes the Court for failing to express itself about the problem and concludes:

These two cases [Van de Kamp v. Goldstein,decided in 2009 and Connick v. Thompson, decided this year)],share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system.

For a lot more information, links and comments on Connick, Pottawatamie and other prosecutorial misconduct issues go to my section on Prosecutors here.

Ethics 20/20 commission on outsourcing and confidentiality of metadata

According to information in the ABA/BNA Lawyers' Manual on Professional Conduct, at its eighth meeting, held April 15-16 in Washington, D.C., the ABA Commission on Ethics 20/20 agreed on the substance of tentative recommendations that it expects to make to the ABA House of Delegates next year for modernizing ethics standards on the outsourcing of services and confidentiality issues arising from modern technology.

As to the outsourcing of legal services, the commissioners agreed that the rules should instruct lawyers to obtain informed client consent in most instances before they allow other lawyers to work on a client's matter.

Interestingly, this is already the law in Illinois where Rule 1.2(e) states that "after accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer not in the lawyer's firm the responsibility for performing or completing that employment, without the client's informed consent."

As for the issues regarding technology, the commission endorsed the idea of adding a black-letter rule recognizing that lawyers have an affirmative obligation to safeguard client information no matter what forms of technology they use to generate, transmit, and store data.

Although there is nothing wrong with this proposal, I am not sure it adds anything to the well established duty of confidentiality, other than to say to lawyers that they have to be careful not to disclose confidential information by accident -- something we knew already.

In addition, the commissioners have decided to suggest that the presence of metadata in a document tranferred electronically does not, by itself, suggest an inadvertent disclosure. Thus, the commissioners largely agreed that the presence of metadata should not in itself trigger a duty to notify the sender.

I am not sure I agree with this. I could be wrong but I think that when a document has metadata it is more than likely the result of inadvertence.

UPDATE (5/7/11):  The Legal Ethics Forum has links to the documents and comments on them here.

How not to practice (bankruptcy) law

William Freivogel, whose excellent website on conflicts is available here, sent me a copy of a recent case we can add to our on-going list of "how not to practice law" series. In this case, called In re: Moon Thai & Japanese, Inc the court reviewed several bankruptcy cases a law firm filed on behalf of clients and found, among other things, that the firm had agreed to represent more clients than it could handle, that the firm's attorneys showed a lack of understanding about conflicts of interest, that the firm used questionable practices in handling retainers, that the firm appeared to be using the services of an attorney who had been suspended by the court and that the attorneys appeared to have misrepresented facts during a hearing.

Based on these findings, the court required both partners in the firm and an associate to complete 60 hours of continuing legal education in bankruptcy law and prohibited them from representing new clients until they obtained permission from the court to do so.

To give you some perspective on the CLE assignment... My Professional Responsibility class is a 3 credit class which means that over a 14 week semester it meets 42 hours total. My Torts class is a 4 credit class, which meets a total of 56 hours a semester. Sixty hours of CLE in one topic should take these guys a long time to complete.

How not to practice law: offer to help law students cheat

Here is a story on the ABA Journal on a Massachusetts lawyer who was suspended for six months for placing advertisements on Craigslist to write students’ term papers and essays. That sanction is too lenient in my humble opinion. He knowingly offered to help law students cheat, which shows he does not care about rules, integrity or ethics. Is that the kind of character you want representing clients out there? Go here for more on the story.


Thanks to Christi Brock for the link.

Budget cuts and legal services

Here are the links to two related stories on funding for legal services.

The Blog of the Legal Times is reporting that the bipartisan deal on the federal budget includes a $15.8 million midyear cut for the Legal Services Corp., which is the nation's largest funding source for civil legal aid to the poor. This is not good news, but the cut is actually smaller than the $70 million originally proposed by the House Republicans. Go here for the full story.

In a related story, the Wall Street Journal law blog discusses budget cuts for public defenders' offices across the country. Go here for that story.

Michigan Court orders new trial because of ineffective assistance of counsel; Counsel apparently "threw" the case

The Chicago Tribune and Prof. Jonathan Turley are reporting that the Michigan Court of Appeals has found a defense attorney rendered ineffective assistance of counsel after the prosecutor herself raised concerns. The prosecutor claimed that defense counsel told her that defense counsel "held back on her defense" because she thought the defendant was actually guilty. Defense counsel did not deliver an opening statement and did not present a single piece of evidence. She also declined to cross examine the victim and other key witnesses and did not object the prosecutor's use of hearsay evidence. The court concluded that "counsel failed to subject the prosecution’s case to any meaningful adversarial testing." Go here and here for the full story.

If true, the conduct of the defense attorney was shameful. On the other hand, after so many stories of prosecutorial misconduct in the past couple of years, it is refreshing to hear about a prosecutor who takes seriously her duty to make sure that justice is done, not just that convictions are obtained.

The case is People v. Gioglio and it is available here.

John Thompson, the plaintiff in Connick v Thompson, writes about his case in the New York Times

Here is a link to a short article by John Thompson, the plaintiff in Connick v. Thompson, published today in the New York Times. The article starts like this "I spent 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished." Towards the end, Thompson adds "I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued."

These are all valid questions, although it should be clarified that the prosecutor who withheld the evidence died and the one to whom he confessed but did not disclose was disciplined. Harry Connick, Sr., the original defendant, in charge of the prosecutors' office, retired I believe. To my knowledge, though, no one else has been disciplined.

Washington Post editorial on Connick v Thompson

The Washington Post has published a short editorial criticizing Connick v. Thompson that starts like this: "A court decision may be legally correct but ultimately fall far short of justice. That is the case with the decision rendered last week by the Supreme Court in Connick v. Thompson." To continue reading go here.

Short Comment on Connick v Thompson

Here is a link to another short comment on Connick v Thompson.

Congress discusses the future of legal aid

Rep. Frank Wolf (R-Va.), chairman of a House appropriations subcommittee said today the largest source of funding for legal aid, the Legal Services Corp., still faces proposed cuts from the House’s new Republican majority. LSC and its local partners should turn to resources from large law firms, state bar dues and law schools, he said and added that private-sector lawyers aren't doing enough to help the nation's poor with legal problems. He warned that they might need to make up for expected cuts in federal funding. Go here for the full story.

Supreme Court stops two executions due to lawyers' conduct

The Supreme Court has sayed two executions scheduled for later this week in Arizona and Texas. By doing this, the Court has put itself in a position to take on an issue that has lingered unresolved for two decades: whether there is a constitutonal right to a lawyer performing effectively in a new challenge started after a conviction has become final. For more on this go here.

Podcast on ethics issues related to websites that "rate" and review lawyers

Go here (or here) for an ABA Journal 20 minute podcast on ethics issues related to websites that rate and review lawyers.

Podcast on e-discovery and Facebook

In the April edition of Law Technology Now, host Monica Bay interviews Craig Ball, author of the Law Technology News’ column, “Ball in Your Court”. They discuss recent e-discovery cases and developments, including Facebook’s decision to create a “one-button” tool to collect user data on its social media site. To listen to the podcast go here, here or here.

ABA Commission releases paper on multi-jurisdictional practice

The Legal Ethics Forum is reporting that the ABA’s Ethics 20/20 Commission has released an issues paper (here) relating to multijurisdictional practice. It identifies possible mechanisms for liberalizing cross-border practice and asks for feedback on whether such changes would be desirable.

Another comment on Connick v Thompson

Lisa McElroy of the SCOTUS blog writes:

"Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines: Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision. Indeed, the facts of Connick are pretty upsetting and powerful: Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable. He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed. The catch? Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case. Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.

So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick. Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors. But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers. Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions."

Supreme Court decides Connick v. Thompson on the possible liability of a DA's office

Last Tuesday the US Supreme Court announced its decision in the highly awaited case Connick v. Thompson. For my previous posts on the case, including links to the oral argument go here, here and here.

In a five-four opinion by Justice Thomas that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference.

In this case, the defendant conceded that the prosecutor in a case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before the truth came to light.

In a dissent joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg stated that "The evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983."

As usual, the opinion has generated much attention in the media. Here are some of the links I have seen, most of which are courtesy of the SCOTUS blog:

The legal ethics forum has some comments here.

Bob Barnes of the Washington Post reports that Connick is “the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.” Barnes adds that the decision “marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.” The New York Times, USA Today, Constitutional Law Prof Blog, the Los Angeles Times, CNN, JURIST, Crime & Consequences, Courthouse News Service, and ABA Journal have additional coverage.

How not to practice law: claim that everything is confidential

The ABA Law Journal is reporting today that a federal appeals court has imposed a $1,000 fine on an attorney from the law firm Katten Muchin Rosenman for "extensive use of improper confidentiality markings." Go here for the story.

Proper punishment or abuse of discretion?

At the end of 2009, I posted a comment on the issue of whether humiliation is a proper punishment in our criminal justice system or whether it should be considered an abuse of prosecutorial or judicial discretion. A few days later I posted an editorial on the subject by Prof. Jonathan Turley published by USA Today (here)

Now comes news that a judge and prosecutor have demanded that Willy Nelson sing a song in court as part of a plea agreement in a simple marijuana possession case. Prof. Turley, consistent with his position in the article cited above, wrote today "I hate to be a cold blanket, but find this neither funny nor tolerable for a legal system. Both the judge and the prosecutor appear to be intoxicated by celebrity crime. . . . If these facts are correct as widely reported, there should be an investigation by the bar of both the role of the prosecutor and the court. Dean-Walker can still redeem herself by treating Nelson like other defendants and sanctioning the prosecutor if he did in fact demand this condition for a settlement." You can read his comment here.

Can an attorney respond if the judge asks whether the attorney knows why the client is missing?

Suppose that night before a hearing is supposed to start, the mother of a criminal defense attorney tells the attorney that her son (the client) is not going to show up. Then, when the judge notices the defendant is missing, the judge asks the lawyer where the client is or whether the lawyer knows why the client is not there. What should he lawyer do?

A short ethics opinion by the San Diego County Bar Association concludes that, under the California Rules of Professional Conduct, the attorney can't do anything. The attorney simply can't answer the judge’s question. If the attorney says she does not know, she is being dishonest with the court in violation of her duty of candor, and if she discloses the information provided by the mother, the attorney would be in violation of her duty of confidentiality.

Thus, the only proper response by the attorney would be that she can't answer the question. The Opinion (SDCBA Legal Ethics Opinion 2011-1) is available here.

Thanks to the Legal Profession blog for the link.

Colorado DA implements a plan that creates incentives for DAs to violate their duties

Should prosecutors receive bonuses if they score relatively high conviction rates? The Wall Street Journal Law Blog is reporting (here) that according to a plan devised by Colorado district attorney Carol Chambers assistant district attorneys are eligible to earn an average $1,100 reward if they participate in at least 5 trials during the year and get felony convictions in at least 70% of their trials. Plea bargains don’t count.

Am I missing something or is this institutionalizing a systems that by definition creates a conflict of interest between the (personal/financial) interests of the DA and the duties under rule 3.8 that require prosecutors to act as ministers of justice and not just as advocates?

According to the story, Chambers told the newspaper that her bonus system is similar to incentive plans used by private employers. The problem is that prosecutors are not like lawyers in private practice. The rules of professional conduct impose on them different duties, particularly a duty to act in the best interest of justice. This means that the prosecutor has to make sure that justice is served, not just that people are convicted to keep the numbers up.

Everyone knows that most convictions in this country are achieved via plea bargains, but, the bonus system in Colorado encourages prosecutors to pursue trials in lieu of plea bargains to qualify for a bonus. Thus, the bonus system actually could encourage prosecutors to act against their duty as a minister of justice.

Discipline for lawyer who claimed she could "channel" the client's dead wife's spirit

A few months ago, I reported (here, here and here) on a case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. Among other thoughts, the lawyer claimed the deceased wife wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.

The State Bar brought disciplinary charges against the attorney seeking disbarment but the Arizona Disciplinary Commission imposed only a one year suspension on the attorney. The State Bar then asked the Supreme Court to review the case and disbar the lawyer. The Legal Profession blog is reporting now that the Court sided with the Commission and imposed only a one year suspension.

The opinion is available here. The report of the Disciplinary Commission is attached here.

Thanks to the Legal Profession blog for the links.

What do you have to do to get disbarred in New Jersey?!

The Legal Profession blog has a short report on a recent case in which the Supreme Court of New Jersey decided not to disbar an attorney even though the attorney had already faced eight ethics complaints in the past, half of which had resulted in suspensions. To make it worse, it appears that the attorney did not even care to respond to the charges in four of those cases. To its credit, the Disciplinary Review Board had recommeded disbarment. I understand the value in providing second chances but after 4 suspensions and a recommendation by the Board to disbar... C'mon!

Follow up on Supreme Court oral argument in Turner v Rogers

In Turner v Rogers, the Supreme Court is considering whether there is a constitutional right to court-appointed counsel in civil contempt proceedings that can result in incarceration. The ScotUS blog has all the relevant documents and briefs. The transcript of the oral argument is available here.

Amanda Rice of the ScotUS blog reports that after the oral argument, Jesse Holland of the Associated Press reported that “the Court sounded reluctant to extend the right to a taxpayer-provided lawyer . . . to civil proceedings where a person faces jail time.” Similarly, Adam Liptak of the New York Times described the Justices as “appear[ing] frustrated” during the argument, as “[i]t seemed that there were procedural and practical problems with almost every potential ruling.”

Prof. Renee Newman Knake, of the Legal Ethics Forum, adds that Adam Liptak summarizes the argument in Justices Grapple With Issue of Right to Lawyers in Child Support Cases. The ABA filed an amicus brief saying yes, "that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time." Professors Ben Barton and Darryl Brown filed an amicus brief arguing no, that pro se reforms are the better alternative for ensuring justice in these types of cases.

For more comments on the case, go here and here.

Supreme Court to hear argument in case on right to attorney in civil contempt proceeding

Tomorrow the Supreme Court will hear oral arguments in Turner v. Rogers (formerly titled Turner v. Price) which asks whether an indigent client has a right to an attorney for civil contempt proceeding that could lead to jail time. Stay tuned for updates on the transcript and more.

Supreme Court reverses finding that prosecutor selected jury improperly

In a very short Per curiam opinion (available here), the United States Supreme Court has issued reversed the United States Court of Appeals for the Ninth Circuit's finding that a trial prosecutor had struck two members of the jury venire for race-based reasons. The defendant's motion for relief based on the prosecutor's conduct had been denied by the trial court and affirmed by the California Court of Appeal. After that court affirmed, the defendant sought habeas relief in federal court, but the District Court denied the motion. The Court of Appeals for the Ninth Circuit then reversed finding that "[t]he prosecutor’s proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African-American jurors were stricken, and the record reflected different treatment of comparably situated jurors."

The US Supreme Court, however, found this conclusion to be "as inexplicable as it is unexplained" and reversed. The case is Felkner v. Jackson and it is available here.

Thanks to the Legal Profession blog for the update.

Supreme Court grants cert in yet another prosecutorial misconduct case

The Supreme Court just announced it has granted review in a case called Rehberg v. Paulk which asks "whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages." The lower court's opinion is available here. As usual, the Supreme Court blog has all the information and links here, including the Petition for certiorari, and all the briefs and replies. Make sure you keep that link handy, since they keep updating it with documents as they are filed.

I have not had a chance to read the opinion or the petition for cert so I do not know the details but I have been speculating for a while that after all the prosecutorial misconduct scandals in 2009 (go here and scroll down for all my posts on prosecutorial misconduct), the Court has been looking for opportunities to express itself on the subject. It first granted review in the Pottawatomie case which eventually settled, and then Connick v Thompson, for which it heard oral arguments in the fall.

Rehberg is, therefore, the third case related to the issue of prosecutorial misconduct in two terms. For previous posts on Pottawatomie go here, here and here. For previous posts on Connick v Thompson, including links to the oral arguments, go here, here, here, here and here.

Does using the plural "offices" when you only have one location violate the rules?

We have seen a number of cases where courts have found the use of "associates" in a firm's name deceptive if there is only one associate or if the attorney does not have any associates at all. A couple of days ago, I noticed a couple of attorneys refer to their firms as "The Law Offices of ....(so and so)..." I wonder if the word "offices" suggests there are multiple locations. Assuming there is only one, does the title of the firm violate the rules?

Ct finds communication among attorneys regarding possible malpractice claim by client is privileged

According to a story on the Ethical Quandary blog, the U.S. District Court for the Southern District of Ohio has rendered an important decision in the area of law firm risk management and attorney-client privilege. The court held that when lawyers within a firm communicate internally regarding the firm’s potential malpractice in an existing client’s matter, those communications are protected from later discovery by the client under the attorney-client privilege unless the client can establish good cause for discovery. The case is called Tattletale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP. For more on the story and a full summary of the case, go here.

DC Ct of Appeals reverses conviction because of prosecutorial misconduct but splits on whether prosecutors should be investigated

The blof of the Legal Times is reporting (here) that, in a 2 to 1 opinion, the District of Columbia Court of Appeals, has reversed a conviction after finding that federal prosecutors failed to timely turn over exculpatory information to the lawyers representing a man in a shooting case. However, the judges who voted for the majority split over whether the trial judge, Craig Iscoe, should inquire whether prosecutors in the U.S. Attorney’s Office for the District of Columbia committed an ethics violation by failing to provide the defendant's lawyers with information beneficial to his case. The case is called Tyree Beysean Miller v. US and the 75-page opinion is available here.

I haven't had time to read the long opinion myself, so I am relying on the news item, but it is hard to understand how you can find that there is prosecutorial misconduct and then not say that it should be investigated whether the misconduct is a violation of the professional rules. If this is an accurate description of what happened here, it is another example of a missed opportunity for a court to take prosecutorial misconduct seriously. For comments on this issue go here and here. For all the recent stories of prosecutorial misconduct - and, unfortunately, there are many, go here.

Podcast on social media

Here is a link to a radio show on the Legal Talk Network on how to (and how not to) use social media as a marketing tool.

North Carolina considers whether to allow non-lawyers to buy interests in law firms

According to a comment by popular New York blogger (and personal injury attorney) Eric Turkewitz, there is a bill pending in North Carolina that would allow non-lawyers to buy up to 49% interests in law firms which he argues "violates the age old prohibition on sharing legal fees with non-lawyers, and is one hell of a lousy idea." He makes a pretty convincing argument in his post which you can read in full by going here.

Should All Lawyer Scoldings Be Public?

Here is a link to a story in the Wall Street Journal law blog that asks whether all lawyer scoldings should be public. It says, in part:

"One most effective ways to deter bad behavior is to publicly expose those who are caught.
Yet, in most states, lawyers frequently are disciplined behind closed doors, through private admonitions or sanctions, rather than through formal, public censures or fines.

. . . . But Rodd Santomauro, the new executive director of HALT, a legal consumer advocacy group based in Washington, D.C., says . . . that “There should not be any private reprimands whatsoever when it comes to disciplining attorneys,” . . ."

The King of Torts is in trouble

Here is a report from about 2 weeks ago in The Wall Street Journal Law Blog on the saga of attorney Stanley Chesley, a very successful plaintiffs' lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career - many of them huge mass dissaster/multi-district litigation type cases.

I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case. I remember him as a nice guy. He was more involved in the negotiating part of the case, rather than the day to day preparation and discovery work - what I was working on mostly. I like to say that he was one of those guys who is into "practicing facts" rather than "practicing law", but that is another story.

In any case, here is what bothers me the most about this: here is a guy who has done a lot of good work over a long, successful career. He has helped many people. He also made lots and lots of money. At this point in his life, he does not need any more money, or fame or anything. Now his career and his reputation are in jeopardy. Say it ain't so, Stan!

As reported in the WSJ, Chesley’s attorneys said they planned to appeal to the Kentucky Supreme Court, which will make a final determination on the commissioner’s recommendation. The attorneys cited a federal probe of the case, which didn’t result in charges against Chesley. “His findings are directly contrary to the findings of federal authorities, who fully investigated this case and never considered Mr. Chesley a target of their investigation,” they said in a statement.

For more on the story go to the Abnormal Use blog.

Should experts in legal malpractice cases be limited to practicing lawyers? -- UPDATED

The Legal Malpractice law review blog is reporting on a recent case from Georgia that holds that expert witnesses in a legal malpractice case must be practicing lawyers. The court apparently ruled the expert in question was not qualified because he did not (1) represent entities or individuals in court; (2) draft or file pleadings in judicial proceedings; or (3) prepare the type of documents or perform the legal tasks at issue in the litigation. Here is the link to the story. The case is called Wilson v. McNeely.

The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice.

When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis.

Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary.

I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.

How not to practice law: charge money for nothing

My students will get a kick out of this story, published yesterday in the Legal Profession Blog, which deals with the topic we discussed in class this week.

Here is a quick reminder of a pretty easy to understand principle: you can't charge a fee and then not provide the services the fee was supposed to pay for. Duh!

This basic principle is illustrated in a decision of the Maryland Court of Appeals. The attorney was disbarred for doing just that. He collected fees in two cases, pocketed them and then did not perform the services. Note that in this scenario, there is yet another violation of the rules: since the fees were paid to perform future services the attorney was supposed to place them in the client trust account. Instead he pocketed the money (and used it for his own personal purposes).

Now here is the kicker. How much money do you think was worth getting disbarred for? The total amount: $1,100.

Maybe I should assign this case to my students because it actually illustrates two other principles I tell them about emphatically in class: (1) it does not matter what the conduct is, because of the lack of guidelines when it comes to sanction, you always risk disbarment. Is it really worth risking it for $1,000? And, (2) having said that, if there is one thing you can be 99% sure of in terms of sanctions it is that if you steal money from a client, it does not matter how much, you will likely get disbarred. And you should; period; end of story.

Did She-Hulk violate the rules against solicitation of clients?

Law and the Multiverse is a blog that addresses legal issues in the alternate world of superheroes and villains. Aside from the superheroes' common connection with law enforcement and other aspects of the law, it turns out that some of them are actually lawyers in their alter-ego lives. I am not a comic books kind of guy, but if I remember correctly Dare-Devil is a lawyer and, as I just learned, so is "She Hulk." (Actually, I have to admit I had never heard of "She Hulk" to begin with, but that is neither here nor there....).

In any case, here is a link to a recent discussion on whether "She Hulk" violated the rules against solicitation of clients when, after saving a victim from an attack by some villains, she offered to represent the victim in a case against other superheroes who did not help her.

PS: I will admit to having watched a few episodes of Birdman, Attorney at Law, which is a pretty crazy show.

Prosecution for jury nullification

When discussing the limits of proper argument by lawyers in front of a jury I ask my students whether a lawyer should be disciplined for asking the jury to disregard the law. The approach to the discussion may change this year given a story published by the New York Times this week. In it, the NYT reports that prosecutors in New York have taken the unusual step of having a jury nullification advocate indicted on a charge that distributing of pamphlets informing jurors of their right to disregard the law at the courthouse entrance violates a law against jury tampering.

Go here for the story in the New York Times and here for the story in the Wall Street Journal law blog.

Billing methods

Yesterday I discussed different billing methods with my students. We spent most of our time talking about contingency fees, but we also mentioned hourly fees and flat fees. We were all familiar with these methods. I have to confess, though, that, until today, I had never heard of anyone billing "by the inch," ... meaning by how thick the file is. Here is a story about an expert witness who claimed he charged $150 per inch of paper....

Proposed bill to enforce ethics rules at the Supreme Court

In the wake of a spirited debate about Justices Scalia and Thomas' decisions to appear before conservative groups and legislators, which included a letter signed by more than 100 law professors (see here), two Democratic lawmakers have proposed a bill that would require a process for taking in ethics complaints about the justices of the Supreme Court, and for investigating those complaints. It would require justices to explain their decisions to recuse or not recuse from a case, and if a justice has turned down a motion to disqualify, it would allow the rest of the Court to disqualify the justice. For more on the story go here.

More on the finding that Feinberg is not neutral in BP oil spill case

About a month ago, I reported that a federal judge ruled that it was misleading for Ken Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. See here. As a result, the website for the Gulf Coast Claims Facility now states the Feinberg is acting "for and on behalf of BP."

According to an updated in the Legal Ethics Forum, the website now states "The Gulf Coast Claims Facility ("GCCF") is the official way for Individuals and Businesses to file claims for costs and damages incurred as a result of the oil discharges due to the Deepwater Horizon Incident on April 20, 2010 ("the Spill"). The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), who is responsible for all decisions relating to the administration and processing of claims submitted to the GCCF. Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration Production Inc. in fulfilling BP's statutory obligations as a responsible party under the Oil Pollution Act of 1990."

How not to practice law: try to help your client by breaking the law

I usually make fun of the lawyer's whose stories end up in my running list of "how not to practice law." This is not one of those stories. This is a sad story of a lawyer who meant well but really did not think it through when deciding how to try to help his client. Here is the story, via Don Lundberg and Mike Frisch of the Legal Profession blog:

The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant and devised a plan to destroy the informant's credibility by showing that he was still dealing drugs. The attorney arranged for two juveniles to purchase marijuana from the informant and assured them that the conduct was legal. The attorney sought the $200 from the client's mother, telling her that it was a litigation cost, and gave the money to the juveniles to fund the purchase.

The juveniles bought the drugs and the attorney recorded the transaction. However, the juveniles only used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney then told the juveniles to hold on to the evidence but they smoked it instead. Then the attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. Instead, the attorney was arrested and charged. He was convicted and the Indiana Court of Appeals affirmed.

The court concluded that the attorney did not stand on "the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy." The court concluded that "the legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense his client...This is not a close case."

How not to bill a client

Tomorrow in class I will start discussing issues related to fees. Right on cue, the website "Say what?!" - which tells funny but true stories of lawyers in Texas - posted this story:

[A lawyer from Houston] has clients who were engaged in a declaratory judgment action filed in another state. He asked outside counsel to conduct “an expansive review of possible jurisdictional issues related to this particular battle which included a number of non- U.S. business entities.” However, when he received the billing statement, he noticed the following provision: Per instructions ...., conduct an expensive search into any and all possible jurisdictional issues."

How not to practice law: advertise you have "associates" when, in fact, you don't

The Legal Profession blog is reporting on a new case involving a practice I have discussed before in this blog: the use of the phrase "and Associates" as part of a firm name when the firm has only one lawyer. There are a number of decisions out there that find this to be misleading and, thus, in violation of the rules of conduct.

The most recent case on this comes from Virginia where a three-judge court has imposed a suspension of 30 days followed by a year of probation. The case is available here. The attorney in question advertised his practice as himself "& Associates" when in fact he had a solo practice. To make matters worse, he also had a web page in which a non-attorney was presented as a member of the firm and in which he listed non-existent firm practice groups.

Obviously, this case involved more than the casual use of the phrase "and associates." This was a deliberate attempt to diceive the public. Given those circumstances, and the fact that there were other instances of conduct that violated other rules of conduct, I would have imposed a tougher sanction.

How not to practice (criminal defense) law: decide for the jury whether your own client is guilty

In last week's episode of the TV show Harry's Law, the main character - Harriet - finds out during trial that her client is actually guilty. Having thought he was innocent all along, Harriet feels she can't continue to represent the client. She asks the judge for permission to withdraw and says to the judge that she will "tank" the case if she is forced to continue but the judge denies her request to withdraw. Harriet does tell the jury in no uncertain terms that her client did, in fact, kill the victim. The judge declares a mistrial and reports Harriet to the disciplinary authorities.

In a case of "life imitating art" (to the extent that "Harry's Law" is art), the Legal Profession blog is reporting on a case in which the Kansas Supreme Court has reversed a conviction based on very similar conduct by a criminal defense lawyer.

In this case, the lawyer told the judge that he thought a surveillance video depicted his client in the act of the crime. Given that the video was not clear, the court found the attorney "ignore[d] the separation of duties in a criminal prosecution", particularly the fact that the "duty as defense counsel [is] to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense." The court concluded that the attorney "exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty."

On the need to make sure the client knows the representation has ended

When discussing the formation of the attorney-client relationship in class, we talk about the Togstad case in which the relationship was formed out of a misunderstaning. I stress that it is very important for lawyers to be clear when they decide to reject a prospective client.

Having said that, I usually remind my students that it is equally important to be clear with current clients about when the representation actually ends.

A new case our of the Supreme Court of New York called McCann v. Manheimer, exemplifies this last point. In this case, the plaintiff filed suit for legal malpractice against her former attorneys. Defendant attorneys moved to dismiss arguing that the suit was barred by the applicable statute of limitations because it had been filed more than three years after the termination of the attorney-client relationship. Defendants alleged that the attorney-client relationship ended on October 28, 2005, at or around the time when they mailed a letter to plaintiff terminating the attorney-client relationship. Plaintiff, however, alleged that she never received the letter, and that she understood the attorney-client relationship continued through March, 2007. Despite New York law providing that a letter that has been mailed is presumed to have been received, the Court held that plaintiff had a raised a triable issue of fact and denied the motion to dismiss.

Conclusion: lawyers not only have to be clear as to when the representation ends; they have to make sure the message is received.

Thanks to the Legal Malpractice Law Review for the link

Indiana Supreme Court tries to clarify whether flat fees can be non-refundable

The Indiana Supreme Court has issued a short opinion on whether flat fees can be non-refundable. I have commented on the confused state of the law regarding this issue here and here. Also, I reported not too long ago that Tennessee and Minnesota have decided to allow non-refundable flat fees (here and here).

In the Indiana case, In the Matter of Heather McClure O'Farrell (available here), the court imposed discipline on an attorney for violating the rule that requires that fees be reasonable. Apparently, what made the fees unreasonable in this case was that they were non-refundable. But it is not as straightforward as that. The real problem was not that the fees were non-refundable, but that the attorney told the client they were non-refundable "no matter what."

In other words, the court suggests that a flat fee can be non-refundable as long as the task for which it pays is completed. What this means is that if the task is completed in less time than originally expected the attorney may keep the value of the time saved.

If the task is not completed, however, as when a client dismisses the attorney before the task is completed, the attorney must refund the portion of the fee that is "unearned."

On this last issue, the matter gets more complicated also since the court recognized that "we are not prepared to hold that some amount of a flat fee must be returned in all cases in which the attorney-client relationship ends before the work contracted for is completed."

In other words, there can be cases where the attorney may be justified to keep the fee even if the task is not completed.

So, are you keeping score? A flat fee can be non-refundable as long as there is nothing to refund; but if there is something to refund, it must be, unless there is a good reason not to. Easy.

And then, here is an interesting point. Given the specific facts of the question, the court found that there was no evidence to support the claim that the attorney had violated her duty to return unearned fees.

So, the attorney was disciplined for charging an unreasonable fee only that the fee was not unreasonable because it was non-refundable -since that is allowed - nor was it unreasonable because she did not refund it -since there was no evidence to prove that... Why was she disciplined for exactly then?

Thanks to the Legal Profession Blog for the update.

Top ten reasons to oppose mandatory CLE

A few days ago I reported that there is a petition pending before the Illinois Supreme Court asking it to revoke its rules requiring minimum continuing legal education. (See here) Today, in a letter to the editor published in the Chicago Daily Bulletin, the attorney who filed the petition lists the following "top ten" reasons to support the petition:

First, one simply cannot demonstrate that MCLE [madatory continuing legal education] enhances professional performance.

Second, one simply cannot demonstrate that MCLE has resulted in any benefit to the public, although touted to do so.

Third, one simply cannot demonstrate that MCLE is justified in terms of the time and expense required to meet compliance requirements.

Fourth, in purporting to comply with the requirements imposed by the various jurisdictions, participants often cheat or falsify compliance reports.

Fifth, instructors offered by providers are often ill-equipped to truly "educate."

Sixth, the real beneficiaries of MCLE are bar associations and other provider organizations and neither the profession nor the public.

Seventh, MCLE is inherently discriminatory. The little guy gets it once again.

Eighth, the time and expense devoted to MCLE often detracts from one's inclination and ability to contribute pro bono services.

Ninth, the notion that MCLE enhances the ethics of our profession is bogus.

Tenth, while MCLE may offer the responsible courts a "feel good" sensation and enhance "perception," the fact is that MCLE is laden with hypocrisy.

More on the finding that Feinberg is not "neutral"

Yesterday I reported (here) that a federal judge ruled that it was misleading for Ken Feinberg, the administrator of the Gulf Coast Claims Fund call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. In his comment in the Legal Ethics Forum, Monroe Freedman concludes that the opinion "confirms that Feinberg has been engaging in unethical conduct that has been misleading claimants and posing a serious threat to the administration of justice.” Here is a link to a short comment and discussion on the wide-ranging implications of the BP and Feinberg arrangement. The PopTort blog also picks it up here.

How private is your privacy on Facebook?

Yesterday I reported on a recent case that held a litigant had waived his attorney-client privilege by disclosing information by e-mail and in a blog. At least in part, this was because the e-mail and/or blog were considered a "public." Interestingly, I just saw a couple of stories about cases in which courts are allowing discovery of information posted online in "areas" thare are supposed to be more "private." Proving again, that there is nothing private on the internet, as one of the stories points out "increasingly, judges in civil cases are granting access to online caches that had formerly been considered off-limits." Go here and here to read more.

California Court Finds Client’s E-Mails and Blog Postings Regarding Conversations with Counsel Waive Attorney-Client Privilege

This is not entirely surprising since at least some jurisdictions have held that misadvertent disclosure of privileged information operates as a waiver of the privilege. Story here.

Judge finds Ken Feinberg is not "neutral"

About three weeks ago I reported (here) on an on-going debate related to Ken Feinberg, the administrator of the Gulf Coast Claims Facility. Several blogs, organizations and articles have argued that Feinberg is acting under a conflict of interest because he was not really simply managing the fund, he was getting paid $850,000 a month by BP to settle claims against BP and obtain releases of liabity for BP.

Now a federal judge has agreed with these allegations and ruled yesterday that it was misleading for Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. The judge has ordered Feinberg to clearly disclose his role as acting for and on behalf of BP. Moreover, Feinberg must "[a]dvise claimants that the 'pro bono' attorneys and 'community representatives' retained to assist GCCF claimants are being compensated directly or indirectly by BP."

In the end, the judge has ordered BP, through its agents Ken Feinberg and any of their representatives, in any of their oral or written communications with claimants (including but not limited to websites, telephone scripts, personal contacts, release documents and correspondence) to

(1) Refrain from contacting directly any claimant that they know or reasonably should know
is represented by counsel, whether or not said claimant has filed a lawsuit or formal claim;

(2) Refrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their
representatives), as “neutral” or completely “independent” from BP. . . .

(3) Begin any communication with a putative class member with the statement that the
individual has a right to consult with an attorney of his/her own choosing prior to accepting any
settlement or signing a release of legal rights.

(4) Refrain from giving or purporting to give legal advice to unrepresented claimants,
including advising that claimants should not hire a lawyer.

(5) Fully disclose to claimants their options under OPA if they do not accept a final payment, including filing a claim in the pending MDL 2179 litigation.

and, (6) Advise claimants that the “pro bono” attorneys and “community representatives”
retained to assist GCCF claimants are being compensated directly or indirectly by BP.

The judge's opinion is available here.

For a brief discussion of the opinion go to the PopTort blog, Legal Ethics Forum and the Wall Street Journal Law Blog.