How not to practice law: start a fist fight during a deposition

Okay, maybe it wasn't a fist fight but still...  The South Carolina Supreme Court has suspended a lawyer for 90 days for slapping a witness before the start of a deposition. The Legal Profession blog summarizes the facts as follows:

[The lawyer-respondent represented the plaintiff in a civil suit and was set to begin taking the deposition of one of the defendants.]  Respondent asked if anyone wanted to take a break.  The defendant, who was seated across the table from respondent, said something to the effect of "No, let's get this crap over with."  Respondent then stood up and pointed at the defendant's face and warned him not to speak to him in that manner.  The defendant stood up and told respondent not to point his finger at him.  Respondent then slapped the defendant in the face.

The lawyer pled "no contest" to a charge of simple assault and battery and and was sentenced to payment of a fine.  The opinion is available here.

This story reminded me of this famous video:

Pro bono opportunities in Chicago

In conjunction with the national pro bono week activities, between Oct. 24 to 28, interested attorneys can attend the Pro Bono and Community Service Fair to learn about pro bono opportunities in Chicago.  There will be free MCLE courses to learn how to do mortgage foreclosure mediation or help those who have been wrongly accused of child abuse or neglect, you can attend the "Breakfast With Judges" to discuss pro bono efforts in our community or participate in a unique workshops titled "Walk a Month in My Shoes: A Poverty Simulation." To get details on dates, times and places, visit the Chicago Bar Association pro bono week website.

John Edwards' Lawyer Faces Conflicts Question

The Blog of the Legal Times has an interesting news story about Abbe Lowell, the attorney for John Edwards.  Edwards is facing a six-count federal indictment in which Justice Department prosecutors say that he received more than $900,000 in illegal campaign contributions.  While the case was under investigation, Lowell was representing (among others) Edwards’ former campaign pollster, Harrison Hickman. But two months ago, after it became clear the case is likely headed to trial, Edwards hired Lowell as his lead attorney. That creates potential conflicts of interest because prosecutors may call Hickman as a witness, according to a new court motion from prosecutors asking for a hearing.  Reportedly, however, all the parties involved have stated hey will consent to the representation so the conflicts may not be a problem. Go here for more details.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What systemic issues do you see in the delivery of legal services and equal access to justice?   How does pro bono fit (or not) into the big picture? The overwhelming majority of low income people appear pro se in court. What should the role of pro bono assistance be for these clients?

Go here to join the conversation.

Florida Court Strikes Down Limits on Lawyer Advertising

On Friday, a federal judge ruled that Florida ad restrictions violate lawyers’ First Amendment rights.  Go here for more information.

Is the federal government trying to make it illegal to practice law?

Here is a link to a short post on the Legal Ethics Forum discussing a bill recently approved by the House Judiciary Committee that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act -- even if the planned activities are legal in the countries where they're carried out.

Suppose a client says to a lawyer, "I'm traveling to Amsterdam and would like to smoke some hash while I'm there. Is that lawful?"  Would answering the question, and providing legal advice, constitute a crime?

Read the Legal Ethics Forum comment here which includes a link to an article in the Huffington Post discussing the issue in more detail.

Today in baseball - and music - history

This post has nothing to do with torts or professional responsibility, but it's my blog, so there!

Did you know today is the anniversary of the very first time a singer sang a personalized version of the national anthem before a sporting event?

On October 7, 1968 Puerto Rican singer/guitarist Jose Feliciano stunned the crowd at Tiger Stadium in Detroit when he sang a non traditional rendition of the national anthem before Game 5 of the World Series between Detroit and St. Louis.  The reaction was not good.  He was booed, criticized, and many radio stations stopped playing his music.  Interestingly, the Tigers won the game and the final two to win the series in seven games.

I am not a big fan of the way many - indeed, most - singers try to change the national anthem these days, but there are a few renditions that I like.  Feliciano's is one of them.  Another one is Marvin Gaye's version before the NBA All-Star game in 1983.

Ironically, Marvin Gaye sang the national anthem in Detroit the day before Feliciano did.  Supposedly, Ernie Harwell specifically asked him to do a traditional rendition of the anthem.  I guess he expected Gaye to try something different.  I don't know if he told Feliciano the same thing...

Also ironically, after Harwell passed away last year, the Tigers had Feliciano sing the exact same version of the anthem before a game to honor his memory.

You can listen to Jose Feliciano's 1968 national anthem here.

You can listen to Marvin Gaye's version in 1968 here and his 1983 version here.

DC to consider rule to require disclosure of information to remedy wrongful conviction

The The District of Columbia Rules of Professional Conduct Review Committee is proposing changes in the D.C. ethics rules.  A short summary of all the proposed changes is available here.  A detailed report including the text of the proposed rules and the committee's report is available here.

The most interesting one is the proposal to adopt a new Rule 8.6 "to require all lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to a court, the convicted person’s counsel, and the convicted person, in the absence of other confidentiality obligations of the lawyer."

As the rule states, however, it does not require disclosure of confidential information.  Thus, this rule would not change the result in a situation like Alton Logan's case.

Given that courts often use the text of the rules to express duties in tort law, one - perhaps unintended - consequence of approving this rule will be to open the door to civil liablity for not disclosing the information. And from there, it might not be long before courts begin to consider extending such a duty to cover other information a la Tarasoff v. Regents of the Univ of California. as in Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979).

Shopping for lawyers by price; good idea?

Here is a comment by popular solo practitioner blog "My Shingle" on a new website modeled after travel sites that allows consumers to comparison shop for lawyers based on price in the same way that they would for hotel rooms or airfare.

Bottom line?  My Shingle concludes that the website "confuses consumers", "creates traps for unwary lawyers and "opens up a Pandora’s box of ethics issues."  In the end, "for a site that purports to promote transparency on lawyer fees, AttorneyFee.com doesn’t just muddy the water for consumers; it converts them into a veritable toxic waste site."

Read the full comment here.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What is the best way to recruit and utilize corporate in house counsel?  Government attorneys? What is the role of rewards/awards in generating pro bono participation? What evidence do you have of their efficacy?  What are your best practices in inspiring and rewarding pro bono participation?

Go here to join the conversation.

Is there such a thing as a potential conflict of interest?

Today we started to discuss conflicts of interest in my class. As we tried to define the concept I asked the students if it makes sense to talk about "potential conflicts" and tried to get them to understand that having a conflict is, in and of itself, a violation of a duty to the client.

Interestingly, over at the Legal Ethics Forum, four law professors recently exchanged views on this.  NYU's Stephen Gillers started it off by using an example from journalism ethics saying that "if there is an appearance of a conflict there is an actual conflict. If the reporter succumbs to the conflict by favoring the clients of the speakers bureau, that's not a conflict. It's a breach of trust." Also, Hofstra's Monroe Freedman commented on the shameful way courts approach conflicts in criminal cases Read the rest of the conversation here.

Indiana Supreme Court on the reasonableness of a contingency fee

A few days ago, I spent some time discussing contingency fees with my students.  Among other things, we talked about whether the reasonableness of a contingency fee should be evaluated based on the terms of the agreement, the circumstances at the time the agreement is reached, the end result (the amount recovered) or a combination of all of them.

Just a day too late for our discussion, but almost right on cue, the Legal Profession blog is reporting today on a new case in which the Indiana Supreme Court imposed a suspension of at least 120 day for "misconduct by collecting a clearly unreasonable and exploitive [contingecny] fee."

In this case, a client approached a recently admitted attorney [which is relevant since the rules list the lawyer's experience as one of the factors used to evaluate the reasonableness of a fee] asking for help to get access to money that was in a trust.  The lawyer agreed to help based on a contingency agreement.  Another lawyer who had been serving as the trustee of the trust agreed to resign as trustee, and the new lawyer took over.  After the transition, the new lawyer paid himself one-third of the funds held in trust, nearly $15,000. The client got nearly $30,000, which presumably was quickly spent.

The trust had been created to protect the client and "to prevent rapid depletion by [the client's abusive, substance abusing boyfriend]."

In support of the view that a contingency fee should be evaluated based on the circumstances at the time of the agreement, the court emphasized that a contingent fee is not unreasonable "every time a case turns out easier or more lucrative than contemplated by the parties at the outset."

However, the court added that a fee that is not unreasonable at the outset may become unreasonable in light of later developments:

...Respondent may have reasonably believed at the outset that removing Ross as trustee would be contested (despite documentation indicating Ross was willing to step aside in favor of a qualified successor). He may have even reasonably questioned the amount of money in the trust upon which his fee would be calculated and collected (despite documentation that $42,500 had been deposited in it just a few months earlier). But within two or three days, Ross agreed to resign as trustee in favor of Respondent, and Respondent had assumed control over the trust, knew the balance in the trust account, had gained access to those funds, and had cut himself a check for his fee. At this point, he knew the case did not involve any complex issues, prolonged time commitment, risk of no recovery, or even any opposition.

The case is called In the Matter of Powell and it is available here.

Analysis of ABA's new formal ethics opinion 461

Go here for an analyisis of the ABA's new opinion 11-461, "Advising Clients Regarding Direct Contacts with Represented Persons."


Thanks to the Legal Ethics Forum for the link.

IL amends rules on CLE

The Illinois Supreme Court has amended some of the rules regarding Continuing Legal Education for Illinois attorneys.  Go here for more information.

Cash for kids judge sentenced

On Friday, Pennsylvania judge Michael Conahan was sentenced to 17.5 years in prison for his role in the cash-for-kids scandal. Conahan and judge Mark Ciavarella Jr. were accused in 2009 of sending teenagers to privately run youth detention centers in exchange for kickbacks from the builder of the detention facilities.  Ciavarella, was sentenced in August to 28 years in prison.  For more, go here.

Supreme Court grants review of case on attorney immunity

The Supreme Court announced this morning that it will review a case on "whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee." The case is called Filarsky v. Delia.

In this case, the District Court found the attorney was protected by qualified immunity, but the Court of Appeals for the Ninth Circuit reversed.  The opinion of the Court of Appeals is available here.  For all the documents filed before the Supreme Court go here.

For more on some surprising announcements by the Supreme Court today - on a different subject, go here.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

Some lawyers prefer to give money rather than their time and skill, and some legal services/pro bono organizations would also prefer this arrangement. Others favor both a monetary and personal commitment to pro bono work/legal services. How do you see this issue? What suggestions do you have?

Go here to join the conversation.

Recent disciplinary decisions in Illinois

The Illinois Supreme Court has announced 70 new disciplinary orders. The Court disbarred 12 lawyers, suspended 43, censured 10, remprimanded two and transferred three others to inactive disability status.

The disbarment orders were for misappropriation (5), charging unreasonable fees (3), failing to return unearned fees or retainers (3), unathorized practice of law in a different state (2), convictions for fraud/tax evasion (2) and dishonesty (1).  The numbers add to more than 12 because some of the attorneys engaged in more than one of these examples of misconduct.

Go to Illinois Laywer Now (here) for details on all the cases.

Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.

In a slightly different type of case, the Oregon Supreme Court recently ruled, however, that a convicted criminal defense client need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available here. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case.

ABA Committee on Professional Responsibility issues new formal opinion

The ABA Standing Committee on Professional Responsibility has issued a new Formal Opinion (No. 11-461 August 4, 2011) in which it discusses whether an attorney violates the "no contact rule" by helping a client communicate directly with another party that is represented by counsel.

The bottom line is essentially this:  A lawyer may not communicate with a person the lawyer knows is represented by counsel unless that person’s counsel has consented to the communication or the communication is authorized by law or court order, and a lawyer may not use an intermediary to communicate directly with a represented person in violation of the “no contact” rule.  On the other hand, it sometimes is desirable for parties to a litigation or transactional matter to communicate directly with each other even though they are represented by counsel.  For this reason, since parties to a legal matter have the right to communicate directly with each other, a lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. Such assistance may not, however, result in overreaching by the lawyer.

The full text of the opinion is available at the ABA's Center for Professional Responsibility website here or here.

How not to practice law: write incomprehensible complaints and briefs; Court suggests disbarment for lawyer's inability to write

A panel of the 7th Circuit Court of Appeals recently ordered an attorney to show cause why he should not be disbarred (from the federal court) after finding that the lawyer repeatedly filed "unintelligible" court papers that were "riddled with errors" and full of gibberish, including a 345-word sentence.

The lawyer had been given three opportunities to correct the brief in the case but “[e]ach iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing.”

For more on the story go here, here and here.  For a copy of the court's opinion go here.

On the possible liability of a lawyer for negligence in handling a settlement ... in Australia

I have commented on the issue of whether a lawyer can be found liable for negligence in a case if the client decides to settle here, here and here.  Interestingly, this is now under debate in Australia.  Here is a link to a short comment by the Australian Professional Liability Blog on the issue.  It provides a survey of the relevant cases and the state of the law down under.

South Carolina continues to struggle with the notion of conflicts of interest

I have argued before that the South Carolina Supreme Court does not understand basic principles of conflicts of interest (see here) and a recent decision involving a lawyer who had "romantic feelings for a client" prompts me to repeat my conclusion.

In this new case (In re Poff, S.C., available here), the court held that having what the court referred to as romantic feelings for the client doesn't create a conflict of interest that rises to the level of an ethics rule violation.  The court concluded that the lawyer's unrevealed romantic interest in the client, "in the absence of any evidence of its effect on his representation, does not, in our view, represent a conflict that rises to the level of a Rule violation."

In other words, the court finds that there is no conflict of interests unless the client is harmed by the conflict of interest.  This view is wrong - in general and as it applies to the facts of the case itself.

As I have stated elsewhere, the court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a harm from happening.  A conflict exists if a lawyer from finding himself or herself in a situation where there is a significant risk that the representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.  The significant risk is what is important.  If there is a significant risk that the lawyer might break a rule there's a conflict. Whether the lawyer breaks the rule is irrelevant.

Thus it is incorrect to think that there is a conflict only if the conflict causes harm to the representation.  On the contrary, it is the risk to the representation what determines that there is a conflict of interest.

The lawyer in this case had a conflict.  The conflict existed because his feelings for the client created a significant risk that the representation could be affected.  Period.  For example, there was a risk that the lawyer would disclose confidential information about the client to others when talking to them about his feelings toward her.... which, not surprisingly, is what actually happened in the case, and which brings me to my next point.  It is incredible that the court would say the representation was not affected since the court found the attorney violated his duty of confidentiality to the client!  

What is the proper level of discipline for this?

Suppose a lawyer is practicing law in a state where he or she is not admitted.  Regardless of whether, at least of paper, that state can impose discipline the lawyer, what the state really wants to do is inform the state where the lawyer is admitted and ask that state to take action.  What level of discipline should the state where the lawyer is admitted apply to a lawyer who was caught practicing law without a license in a different state?

A new case from New York provides some light on the subject.  In this case, a lawyer licensed to practice in New York was “disbarred” by the highest court in Maryland for several acts of misconduct, including the unauthorized practice of law. See, Maryland Attorney Grievance Comm'n v. Sucklal, 12 A.3d 650 (Md. 2011).  Since the lawyer was never admitted in Maryland, "disbarment" in that context means permanent exclusion from eligibility for law practice in Maryland.

Back in New York, however, the attorney was only suspended for one year (with the possibility of reinstatement after only six months).  The case is called In re Sucklal.

This situation poses and interesting question about the concept of reciprocal discipline.  I think states should have the flexibility to decide their own disciplinary matters and that there may be reasons why a state may not want to impose exactly the same sanction imposed by another state.  But I wonder what is the standard sanction in New York for the unauthorized practice of law.  If it is a one year suspension, I understand the decision of the court.  But if New York disbars attorneys who practice law illegally in New York, why not disbar a New York attorney who practices illegally somewhere else?

ABA Commission has released new proposals for amendments to the ABA Model Rules

The ABA Commission on Ethics 20/20 has released for comment revised proposals for amendments to the ABA Model Rules of Professional Conduct with regard to Outsourcing, Technology and Confidentiality, and Technology and Client Development. In addition the Commission has released updated versions of its proposals concerning foreign lawyers and the ABA Model Rule on Pro Hac Vice Admission, the ABA Model Rule for Registration of In-House Counsel, and ABA Model Rule 5.5.

Comments are due by November 30, 2011. Please check the Commission's website (here), for continued updates regarding proposals, discussion drafts, Commission meetings, and public hearings.

You may view the cover memo from Commission Co-Chairs Jamie S. Gorelick and Michael Traynor and the proposals from these links:

Cover Memo

Outsourcing

Technology and Confidentiality

Technology and Client Development

ABA Model Rule on Pro Hac Vice Admission

ABA Model Rule for Registration of In-House Counsel

ABA Model Rule 5.5

For a comment on the proposal regarding outsourcing go to the Legal Research and Writing Pro blog

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What methods have you found most effective in engaging law students in pro bono?  What type of legal work have you found is most appropriate for law students?  What suggestions do you have for law schools that would result in the graduation of students committed to access for all?

Go here to join the conversation.

Pro bono conversation continues

Following up on the invitation to engage in a conversation about pro bono work during the next few weeks, here are a couple of items:

1.. In a recent speech, retired Supreme Court Justice John Paul Stevens said that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis.  Go here for the full story.

2. Some jurisdictions are considering imposing mandatory pro bono, something that has been considered several times in the past by the drafters of the ABA Model Rules also. In response, Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute, argues that even though "[t]he U.S. legal system is facing a crisis of unparalleled proportions" and that "[t]he legal aid crisis and the courts crisis have morphed into a justice-system crisis" mandatory pro bono is not a good idea. She argues that there are other things all segments of the profession "can and should do to ease the crisis and restore the public's faith in our justice system before resorting to mandatory pro bono."

I tend to agree.  Mandatory pro bono is not necessarily a good idea.  Forcing people to do work they don't want to do usually does not yield good results.  For those who don't want to do the work, I would rather urge them to contribute financially to organizations who do want to do the work and can use the resources.  If we do institute mandatory pro bono, this financial contribution option should be an alternative to meet the requirement.

In her short article, available here, Lardent names seven other things that can be done.  Let me comment on a couple.

She suggests that ABA Model Rule 6.1 should be revised stating that "As one of the co-authors of the ABA's model rule on pro bono adopted in the early 1990s, I can candidly state that it is seriously out of date. Given the scope of the crisis we are facing, the rule's overly broad definition of pro bono — which currently includes discounted fees and bar association service — cannot and should not stand. Pro bono should mean free legal work done on behalf of low-income or disadvantaged clients, period."  I agree that there can be a better way to define pro bono and also that lawyers should be encouraged to do more than simply offer  "discounted fees" for clients who can pay regular fees and who have easy access to legal representation.  I do think, however, as I said before, that contributing financially to legal aid or other organizations created for the purpose of providing legal aid to those who wouldn't otherwise have access to legal representation should be considered a valid way to meet pro bono obligations.

Lardent also suggests that states should make pro bono reporting meaningful. I couldn't agree more.  Some years ago, Illinois adopted a mandatory reporting system.  Lawyers are not required to provide pro bono services but if they do provide it, they have to report it.  When I ask my students how this would work to encourage more people to do pro bono work, they usually say that other lawyers would be "shamed into" doing it when they saw how many other people were doing it, or when they saw other "competing" firms using their pro bono commitment as a marketing tool, and so on.  This is true, and not necessarily a bad thing, but it only works if the reporting results in publicity. Only if the results of the reporting are publicized, and celebrated, will the information have a positive effect on others.   I will post a separate comment on this at some point in the future.

Commission on Legal Ethics 20/20 presentation at the ABA annual meeting

The ABA Commission 20/20 is working on new amendments to the Model Rules of Professional Responsibility.  Here is a video of a presentation to the ABA at the recent annual meeting discussing the work of the Commission. It provides a very good summary of the work of the Commission so far.

Pro bono conversation question of the week

Here are this week's national pro bono celebration questions: What are the best ways for the public interest and private bars to work together to provide high quality legal services to poor and marginalized people? How can we increase collaboration between all segments of the legal community?  What innovative, creative models already do or would result in increased legal services for low income individuals and communities?  Are there new ways of thinking about the delivery of legal services that would result in meeting more need?

Go here to join the conversation.

National Pro Bono Celebration

Building on the success of the annual National Pro Bono Celebrations in 2009 and 2010, the ABA Standing Committee on Pro Bono and Public Service is sponsoring the Celebration again this year October 23 through 29, 2011.  Go here for more information.

The Celebration is a coordinated national effort to meet the ever-growing needs of this country's most vulnerable citizens by encouraging and supporting local efforts to expand the delivery of pro bono legal services, and by showcasing the great difference that pro bono lawyers make to the nation, its system of justice, its communities and, most of all, to the clients they serve.

As part of the Celebration, the Committee is encouraging a national conversation about pro bono.  How can we frame a new way of thinking about and delivering pro bono legal services?

Please contribute to a stimulating national conversation about the future of pro bono work and the delivery of quality legal services. Help shape this approach by sharing your inspired ideas and comments. What has worked for you? What are your best ideas and experiences? What changes are needed and how might they be accomplished? What are the most effective collaborations and partnerships? How can the private and public interest bars work together most effectively to provide access to justice for all?

Twice weekly, on Mondays and Wednesdays, a new question will be posted for your reflection and comments. Please participate often and invite your colleagues to do the same.  You can see the list of questions here.

A national conversation can seed new initiatives and new approaches throughout the country; please join in this dynamic exchange of insights and ideas. Your voice needs to be heard. Join the discussion now.

Former White House Aide suspended for one year only over definition of "moral turpitude" -- UPDATED

In March of 2010, I reported the story that appears below. The case was appealed and the Court of Appeals just announced its decision affirming the decision.  If you remember the original story, go to the bottom for the more recent update.


March 12, 2010:

The Blog of the Legal Times is reporting today that the D.C. Board on Professional Responsibility has recommended to the D.C. Court of Appeals that former White House aide Claude Allen, who pleaded guilty in 2006 to one misdemeanor count of theft of property, be suspended from the practice of law for one year.

Allen, who at one point was nominated by President Bush to the U.S. Court of Appeals for the Fourth Circuit, admitted that, on several occasions, he bought an item at a Target store and then later went back to the store with the receipt, pulled an identical item off the shelves, and used the receipt to “return” it, allowing him to keep the purchased item at no cost.

On these facts, the Board recommended a suspension because, according to its report, bar counsel "failed to prove moral turpitude." Had bar counsel proven moral turpitude, the lawyer would have been disbarred. According to the report, the Board stated that "Allen’s actions were “deceptive and dishonest”" but not enough to show moral turpitude.

I am sorry, I must be missing something.... Let's review,... so the guy goes to the store, lies, cheats and STEALS... repeatedly.... for kicks and giggles.... (I am guessing a White House aide, federal appeals court nominee does not really need a few things from Target that badly!).... and that is not moral turpitude?!?

I guess I have to review what 'moral turpitude' means....

Ok, so let's see... According to the BLT, the Board's report states that “Dishonesty is an important factor in analyzing whether criminal conduct rises to the level of moral turpitude, but not every criminal act of dishonesty involves moral turpitude . . . The key factor, the report says, is “dishonesty for personal gain.""

Hmm... Let me see if I get this.... go to Target, ...lie, ....cheat, ....steal, .... keep money..... "dishonesty for personal gain"?....... Yeah, sorry, ... still don't get it...

How is the conduct here not "dishonesty for personal gain"? Can someone explain this to me?

The guy is a convicted liar and a thief and you are telling me that his conduct is not evidence of dishonesty for personal gain!?

Is the Board saying that it is not so bad because the guy stole "only" about $800 or so.... So stealing is not so bad as long as it is not that much? Is that what you are telling me? Is that a lesson you'd like me to teach my 5 year old?

I think I have made my point. I hope the court disregards the recommendation and does the right thing here. This guy should be disbarred. Period. If he needs psychiatric help, get him help, do whatever, but don't allow him to represent people whose property, lives and money depend on him until he shows he can be trusted. Shame on the Board.

More on the story here.  You can find the Board's report through this link.

UPDATE:  September 8, 2011

More than a year since the decision of the DC Board on Professional Responsibility, the DC Court of Appeals has affirmed the decision and imposed a one year suspension.  On appeal, Bar Counsel had requested that the Court reject the Board's conclusion and order disbarment.  As I argued back when the Board's decision was issued, I agree with Bar Counsel.

But the Court did not agree, holding that a misdemeanor should never be considered, per se, a crime involving moral turpitude - even if it could be considered to be a "serious crime."  But that was not the end of the question.  Finding that the conduct did not involve moral turpitude per se, the court had to evaluate the specific facts of the case to determine if, under the circumstances, the conduct should be considered to have involved moral turpitude.  The court concluded that it did not.

Bar counsel argued that the conduct involved moral turpitude because it was intentional dishonesty for personal gain.  The court saw it slightly differently concluding that, although "it is clear that respondent committed an intentional act of dishonesty, . . . and because respondent kept the stolen items, he actually personally gained from the commission of the theft," the lawyer's actions "were not so much motivated by a desire for personal gain as by psychological disturbances."

I understand the court's reasoning, but I remain unconvinced, particularly when the Hearing Committee who heard the original evidence did not give credit to the testimony of the attorney's doctor whose opinion and diagnosis was described as imprecise and "changing" -- which I take to be a nice way of saying it was unconvincing to say the least.

Judge for yourself and let me know what you think....  The case is called In re Claude A. Allen and the opinion of the court is available here.

For more on the story go to the Blog of the Legal Times and the Legal Profession Blog.

Discipline for conduct outside the practice of law: conduct as a juror

The rules of conduct clearly state that making false statements to a tribunal constitutes misconduct.  Typically, we think of this as applying to attorneys who participate in a judicial process as an attorney, (ie when representing a client).  But a new case by the Supreme Court of Minnesota reminds us that this principle is broader than that. In this case, the attorney was called to serve as a juror.  During the voir dire process he lied about his past and, for this reason, the Supreme Court imposed a 60 suspension.  The case is called In re Petition for Disciplinary Action against Benjamin Adam Warpeh and it is available here.

Note that this is also an example of discipline for conduct outside the practice of law.

Just goes to show you that, as the old saying goes, "honesty is the best policy."

Thanks to the The Legal Profession Blog for the link.

Groupon for lawyer services

As you know, ABA Model Rule 5.4 prevents a lawyer from sharing fees with non-lawyers other than in some limited cases.  This is also true in most, if not all jurisdictions. Do lawyers violate this rule if they try to attract clients by sharing a percentage of the fee with the service that provides the means for the lawyers to communicate with the possible clients?

This is the business model of the daily coupon system now known as "Groupon" which offers customers discounted deals for future services.

Given the slow economy, many lawyers are looking for ways to attract new clients so it was inevitable that someone would think of using groupon to do so thus raising the question regarding fee-sharing.

At least two states have now published ethics opinions on the issue and both found that using groupon as an advertising method would not violate the rules that ban sharing fees with a non-lawyer. The North Carolina State Bar so concluded in its Formal Ethics Opinion 10: Lawyer Advertising on Deal of the Day or Group Coupon Website (July 14, 2011) (available here) and the South Carolina Bar did so in its Ethics Advisory Opinion 11-05 (available here).  The Virtual Law Practice blog comments on them here.

Given that Groupon takes 50% each time a customer buys the coupon, a lawyer who gets clients' fees through a Groupon deal is, in fact, sharing the fee with Groupon. But I guess I understand the reasoning behind the opinions. The fear behind the ban on sharing fees with non-lawyers is that the non-lawyers could exercise influence over the lawyers thus threatening the lawyers' duty to exercise independent professional judgment. That is not likely to be a problem with Groupon.

Having said that, the fact that it is not unethical to use Groupon to attract clients, does not mean it is a good idea, according to solo practitioner and popular blogger Carolyn Elephant who says that "Groupon’s potential fee-splitting issues that the bar decisions resolve are the least of its problems for lawyers. In my opinion, the ethics decisions are a no-brainer: regulators have no choice but to lighten up on performance-based online advertising (like Google Ads) where participants pay only for results. If not, small firms won’t be able to compete online with large shops which will always have the resources to pay out of pocket for ads and directory listings. So I never got too excited about Groupon’s ethical implications. Instead, I wouldn’t recommend Groupon because the business model simply DOES NOT WORK!"  Read her full comment here.

Should the financial effects of defending against a disciplinary procedure on the accused attorney be taken into account when deciding the appropriate sanction?

Here is a link to a comment on a recent decision in Australia discussing this question. The court's decision is available here.  If I understand the Australian case correctly, apparently the disciplinary authorities can impose fines on attorneys as a form of discipline.  In this particular case, the Tribunal found that the fine would be "at the lower end of the range" because the attorney was also ordered to cover the state's costs.

I have mixed feelings about this.  I understand that adding the amount the attorney would have to pay in costs and fines might result in a significant expense, but I think the punishment should fit the crime, as the saying goes. If the conduct is particularly bad, the punishment should be harsh.  At least in theory, this is the more effective way to achieve deterrence.

Thoughts on discipline

A couple of days ago, I posted a note about a few new cases involving lawyers who prepared wills for clients in which the lawyers named themselves or their wives as beneficiaries.  Using one of these cases as the basis for his argument, Mike Frisch of the the Legal Profession blog has posted some thoughts on lawyers' discipline here.

He starts by arguing that "[i]f ever there is a case to be made for non-public discipline," one of those three cases is it because it involved an aging practitioner who probably just made a good faith mistake. He had checked case law that was later trumped by changes in the governing rule, he acted in a manner that negates any hint of an improper intent and, in the end, the "inheritance" was an end table and some tools. From there he goes on to discuss the other possible end of the spectrum when it comes to discipline: a "zero tolerance" policy for ethics violations.  He thinks that such a system would not only be a bad idea, it would never work.

Should a bar prosecutor be able to exercise discretion and spare a senior lawyer in the process of winding down a 60 + year practice of the shame of a public sanction?  

I do not think so.  I don't think there is a good case to be made for private discipline.  I think all discipline, to be fully effective, should be public.  I think that the better approach is to continue to allow the authorities to decide the appropriate sanctions to be imposed on a case by case basis.  That way, the attorney who makes a relatively minor mistake would receive a minor sanction.  Yet, if the sanction is public, the attorney - and others - would learn from that mistake and be more inclined not to engage in similar conduct in the future.

Should the court have imposed sanctions in lawsuit for "bad mothering"?

Tort reformers love to claim that there are too many frivolous lawsuits filed in this country. Even though the evidence does not necessarily back up the argument, every now and then a new case comes along that helps them advance the allegation.  Here is the latest one; one that includes some laughable claims for which the lawyers representing the plaintiffs were lucky not to get disciplined.

In this case, two adult children sued their mother - whom the father had divorced - arguing that she was a bad mother. One of the lawyers for the plaintiffs was the plaintiff's own father and ex-husband of the defendant.  Among other things, one of the plaintiffs alleged that his mother told him - when he was 7 years old - that she would call the police if he didn’t buckle his seat belt, that when he went to college she did not send him a "care package" until his third year there, that she either did not send birthday cards or that, when she did, she did not send gifts and that she changed her last name when she remarried.

Based on these and other similar allegations (you really should read the opinion to get an accurate impression of the allegations), the children argued the mother's conduct constituted either intentional or negligent infliction of emotional distress.  In response, the court found for the defendant and dismissed the claims finding - correctly - that the allegations simply did not support a prima facie case.  Many of the allegations, the court concluded, "consist or snide and insulting remarks" and relate to parental discipline, which are not actionable.

As the court suggests, maybe the mother was not generous or fully sensitive to the needs of her children, but that is not conduct for which the law recognizes a remedy in tort law.  A ruling in favor of the children, the court said, “could potentially open the floodgates to subject family child rearing to nonconstructive excessive judicial scrutiny and interference."

The case is called Miner v Garrity and you can read the order of the court dismissing the complaint here.

For more on the story, go to the Chicago Tribune or take a look at the coverage in Lowering the Bar - a blog dedicated to legal humor,  and to the comments by readers of the Wall Street Journal law blog - all of which either make fun of the lawyer and plaintiffs or wonder why the plaintiffs' lawyers were not sanctioned.

How not to practice law: prepare a will for the client in which the client names you or your wife as the beneficiary

There must be something going around about this...  Three separate cases reported within the last couple of weeks involved attorneys getting disciplined for preparing wills in which they named themselves or their wives as beneficiaries.

In one case, a New York attorney appointed as a guardian to an incapacitated person was disbarred for helping her prepare a will in favor of the attorney's wife.  Interestingly, he used her maiden name.  I wonder why? You can read the opinion here.

In a similar case, however, the Illinois Review Board found that a censure was the appropriate sanction for an  attorney who drafted a will that left a small portion of the deceased's residual estate to the attorney's wife.  That opinion is available here.

In the third case, the Illinois Review Board recommended that a public censure for an attorney who drafted a series of trusts and wills in which he was one of the beneficiaries. In this case, the board found it significant that there was a close, longstanding relationship between the attorney and the deceased.  That opinion is available here.

Discipline for conduct outside the practice of law

One of the first lessons I want my students to learn is that the disciplinary authorities can, and often do, discipline an attorney for conduct outside the practice of law.  There are many cases that can be used to illustrate this, and now we have a brand new one courtesy of the Illinois Hearing Board.  In this case, called In the Matter of Golden, the Board concluded that the attorney in question lied to his daughter's school so that she could get financial aid for which she did not qualify. He submitted financial aid applications which included false representations and fraudulently altered documents for three separate academic years. Even though the conduct was not within the practice of law and even though the attorney had no record of prior discipline, the Board found the conduct was so dishonest that the attorney should be disbarred.  You can read the opinion here.

New Formal Opinions from the ABA Standing Committee on Ethics and Professional Responsibility

Last month the ABA's Committee on Ethics and Professional Responsibility issued two new formal opinions.  There are available through the website of the ABA Center for Professional Responsibility.  Here are the official summaries:

Formal Opinion 11-459: Duty to Protect the Confidentiality of E-mail Communications with One’s Client

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party. 

Read the full opinion here.

Formal Opinion 11-460: Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. Read the full opinion here.

IL Supreme Court announces decision that illustrates why a statute of repose in legal malpractice cases is a bad idea

Illinois is the only state I know of that has a statute of repose that applies to legal malpractice actions. This means that, as in all statute of repose cases, an injured plaintiff can lose the right to recover against a lawyer before the client finds out he or she has suffered that injury. This, in my humble opinion, is absurd, and what makes it even worse is that the period of time recognized in the statute is only six years. Typically, statutes of repose in other areas of the law are at least ten years - although some have been lowered in response to tort reform efforts.

This summer the Illinois Supreme Court issued an opinion that illustrates everything that is wrong with the Illinois approach to the issue. In this case, the plaintiff, a widow, found out after her husband’s death that, due to the negligence of the defendant attorney, she was not entitled to her house by right of survivorship. She sued the lawyer and the lawyer argued the claim should be dismissed under the statute of repose. The lower court granted the motion and the Supreme Court affirmed.

The Illinois statute of repose states that a claim may not be brought more than six years from the date on which the complained-of act or omission occurred. There is an exception to this, however, where the injury does not occur until the death of the client, in which case suit may be brought within two years of the demise. Here the court held the injury occured when the lawyer was negligent, not at the decedent’s death and held the case had to be dismissed.

Applying a statute of repose in legal malpractice cases is a terrible policy and Justice Freeman wrote a dissenting opinion that does a great job explaining why. First of all, it must be understood that the plaintiff here is not the lawyer’s client but a beneficiary of the lawyer’s work. More importantly, a future beneficiary. The lawyer’s work would not have any effect on the plaintiff at the time the lawyer performed his work negligently but much later in the future when the beneficiary would acquire the right to the benefits supposedly provided by the lawyer’s work. Thus, it is simply absurd to claim that the beneficiary suffered anything at all when the lawyer failed to draft some documents while her husband was alive.

Second, it is illogical to assume that a beneficiary would have to double check - presumably with another lawyer - the accuracy of the lawyer’s work when the lawyer performed it in order to discover the lawyer’s negligence at the time it happened.

Third, given the facts of the particular case, to survive the effect of the statute of repose, the plaintiff would have had to have sued while her husband was still alive, at which time she had not suffered the injury, had no knowledge that she was at risk of suffering an injury and, more importantly, since her husband was still alive, had no right to sue to begin with.

I agree with Justice Freeman when he says the result is absurd and unjust and that what it does is protect negligent lawyers.  You can judge for yourself by reading the opinion here. The case is called Snyder v. Heidelberger.

Defendant who pleads nolo contendere is precluded from suing for legal malpractice

Here is a recent case in a long line of bad cases that hold that a criminal defendant does not have a right to sue his or her attorney for legal malpractice.  I had posted about it in my torts blog this summer but forgot to mention it here so here it is... In this instance, the West Virginia Supreme Court held that a criminal defendant who, having obtained habeas relief, pled nolo contendere to the criminal charges.  In a dissenting opinion, Justice Ketchum argued that the court's decision is contrary to 148 years of precedent as well as rules of procedure and evidence.  He also argues that the decision "obliterates a criminal plea that served a very useful purpose." You can read the opinion here and the dissent here.

How not to practice law: double bill the court!

Adding to our running list of examples on how now to parctice law, here is the story of a Washington attorney who has been suspended from practicing law in the District of Columbia for a year after it was revealed that he double billed D.C. Superior Court for legal services rendered to indigent defendants on 162 occasions!   Go here for the story.  Go here for more "how not to practice law" stories.

Documentaries -- UPDATED

In my post about the West Memphis Three earlier today I mentioned the documentary "Paradise Lost,"  which I highly recommend.  It was also included in the list of "50 Documentaries to See Before You Die."  This is the title of a series in the Current TV cable channel that has been running this month.  I am a big fan of documentaries and the selection of "the 50" so far has been very good, but I don't think they are going to include all of my favorites.  So here is my list of the best law related documentaries I have seen, in no particular order.  I encourage you to look them up.

Four Little Girls

William Kunstler: Disturbing the Universe

Paradise Lost

Brother's Keeper

Incident at Oglala (here)

Waco: rules of engagement

Cheney’s Law (here)

The Thin Blue Line

The Trials of Henry Kissinger (here)

Terror’s Advocate (here and here)

The U.S. vs. John Lennon

The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers

The Chair

Chicago 10
 
 
Now is your turn.  What law related documentaries do you recommend?  There are two more documentaries I would like to mention but I have not seen them yet:  The Trials of Darryl Hunt and Hot Coffee.  They are on my list of movies to see soon...

On the release of the West Memphis Three

In 1993 three eight-year-old boys were found dead in a muddy creek in West Memphis, a small town in eastern Arkansas.  The discovery of their bodies led to hysterical allegations of satanic rituals and eventually resulted in the arrest and trial of three other kids.  Their case became famous in part because of an outstanding documentary called Paradise Lost: The Child Murders at Robin Hood Hills.

One of the kids confessed but then recanted; the others always maintained their innocence.  At their trials very little evidence was brought forward to connect them to the murders but they were all convicted. 

Having served more than 18 years in prison, all three were released last week when, after years of appeals, the state of Arkansas accepted a rare plea by the three men (now in their 30s).  They were sentenced to time served and released immediately.

A lot has been written about this development in the case over the past few days.  You can google "West Memphis Three" for lots of information.  (By the way, did you know "google" is now a verb?)  

Also, here is a link to a podcast  from the Legal Talk Network discussing the case. 

If you have not seen the documentary, you really should.

What constitutes a "misleading" ad?

As you probably know from having studied the Supreme Court cases on advertising of legal services, the state can, without violating the attorney's first amendment rights, discipline attorneys who engage in advertising that is misleading.  Claiming that an advertisement is misleading is, in fact, the easiest way for the state to impose discipline in advertising cases. 

But what exactly constitutes a misleading ad?  That is not such an easy question to answer.  Obviously, you would think it means an ad that gives a wrong impression; but that is subject to so much interpretation that it really does not provide much guidance.

Should an ad in which the lawyer says "I get results!" while pounding on a table be considered misleading because it suggests the lawyer always wins?  How about one that says "we make them pay!" or that "I have been getting victims higher cash awards for years" or something like that?

I don't know.  And now, a case from Indiana should give lawyers reason to worry about exactly what words they use to describe their practice.  Choosing the wrong word can not only make the ad misleading it can be interpreted to be a violation of another rule.

In this case, two attorneys agreed to a stipulated sanction for having published an ad in the phonebook's yellow pages promoting themselves as "Specializing in Bankruptcy Relief."

The objection to the add was based on the fact that "[n]either Respondent has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education."

How is the statement in the ad misleading?

The problem is that, subject to limited exceptions, rules of professional conduct ban lawyers from stating, or implying, that they are "specialists" in any particular field of law.  See for example, Model Rule 7.4(d).  And, as in this case, some courts have found that saying that one specializes in a certain type of practice implies that one has been certified as a specialist in that area.

I am sorry but I think that investing time and money on imposing discipline for the statement in this case is just a waste of resources! To specialize is a verb. I looked it up in the dictionary and it says "to concentrate one's efforts in a special activity, field, or practice."   You don't have to be certified to practice bankruptcy law and if the attorneys' main area of practice is bankruptcy law they, in fact, specialize in bankruptcy relief.  Can't a lawyer advertise that they specialize in a particular area of the law anymore?  How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.

What do you think?  Is advertising that says a lawyer specializes in an area of law (assuming the lawyer does practice mostly in that area) misleading?  Should it subject the lawyer to discipline?

UPDATE:  May 2013:  In a recent case from Louisiana a Hearing Committee has recommended a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases.  See my comment on this new case here.

UPDATE: Oct 2015: In a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize” or have “expertise” are board certified, but the Court found no evidence to support this argument.  Because the rule essentially banned attorneys from making true statements that describe their areas of practice, the judge concluded the rule was unconstitutional under the test used to determine the constitutionality of restrictions on commercial speech under the First Amendment.  Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise.  Go here for more information.

UPDATE: Sept 2016:  Despite the Court's order, the Florida Bar has enacted a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it.  I think the amendment would not pass Constitutional analysis.  You can read the proposed new language and get more information here.

Is this one of your favorite blogs?

The ABA Journal has started its annual search for the 100 best legal blogs.  You can nominate your favorite blogs by filling out a short form here.   I would be honored if you would consider nominating this blog and/or my Torts blog.

I started this blog a few years ago thinking I would use it to keep my students informed of recent news, but I quickly realized a lot more people have been paying attention to it! One of the most rewarding things about blogging is getting unexpected e-mails from time to time from lawyers, judges, professors and other bloggers with comments, suggestions and ideas.  Needless to say, I will continue to do my best to bring you news and commentary and hope you continue to enjoy the blog.

Legal Zoom settles claim of unathorized practice of law

The class action filed in Missouri claiming that LegalZoom.com, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri has settled.  The trial had been set to start yesterday but LegalZoom has announced an agreement in principle to settle the lawsuit. LegalZoom says the settlement agreement contains no admission of wrongdoing and lets the company continue offering services to Missouri residents with certain changes.

Go here for my original post on the case where you can find a copy of the complaint and more links.

This is not a new issue. In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is avaliable here. LegalZoom's response to it is available here.

Sources: The Wall Street Journal law blog, AP

Prosecutors respond to Roger Clemens' argument against re-trial

A few weeks ago I reported (here) that the lawyers for Roger Clemens asked the court to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished.  In response, prosecutors have filed a brief arguing that Clemens is "seeking to gain an unwarranted windfall" from an "inadvertent error."  Go here for the full story.  Go here for a copy of the brief.  The motions will de discussed at a motion hearing scheduled for Sept. 2.

Prosecutor gets slap on the wrist for violation of duty to disclose information to the defense

The Legal Profession blog is reporting today that the Virginia State bar agreed to accept a prosecutor's agreed disposition (ie, a plea agreement) to get a public reprimand after admitting to having failed to make a timely disclosure to a defendant’s counsel of evidence that could negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.

To this I say: shame on the Virginia State bar.  Given the many recent reports of prosecutorial misconduct around the country, the recent changes to the Model Rules (now adopted in at least 46 states) that impose specific duties on prosecutors and the US Supreme Court's recent decisions related to the misconduct of prosecutors for this exact same conduct, the choice of a reprimand as a sanction is disturbing. It gives the impression the Virginia bar does not really find the conduct was that bad and that it does not care that much prosecutors are violating the rules.

For more on the story go here.

Supreme Court November oral argument schedule

The Supreme Court has issued its schedule for the first oral arguments of the year and there are three cases related to the "law lawyering" including the two very first ones scheduled:

On Monday, Oct 31 the court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444).  Both cases are about claims of ineffective assistance of counsel based on advice to reject a plea offer and either plead guilty or go to trial.

Also, on what seems to be a trend of cases related to prosecutorial misconduct before the Court in the last couple of terms., on Tuesday, Nov. 8, the Court will hear Smith v. Cain (10-8145) which addresses the impact of a prosecutors’ failure to disclose evidence favorable to the accused’s defense on the verdict in a criminal trial.  

As usual, for more details and information on these (and any other Supreme Court case), including links to the briefs, lower court opinions, and other documents, go to the SCOTUS case files page (here).

Court of Appeals finds no ineffective assistance of counsel even though attorney fell asleep while defendant was under cross-examination -- UPDATED

Yesterday, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination.  The case is called  Muniz v. Smith (although I suspect it should be Muñiz) and it is available here.   The court held that a courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial.  The case has generated a good debate here. 

UPDATE 8/4/11:  Lowering the Bar has more on the story here.

Iowa to consider whether sanctions in discipline matters should be kept confidential

The Wall Street Journal law blog is reporting that at the end of this month, the Iowa Supreme Court will consider a proposal that would allow lawyers who face discipline for stealing from clients and neglecting client matters to prevent their sanctions from being disclosed publicly. In exchange for this confidentiality, though, lawyers would have to agree to cooperate in expediting the suspension of their law licenses.  Go here for the full story.

I have mixed feelings about this.  On the one hand, offering confidentiality will expedite the process and, hopefully, make it more efficient.  That is a good thing.  But on the other hand, secrecy may eliminate, or at least limit, the goal of deterrence.  Also, it limits the amount of information available to the public when searching for representation.

How not to practice law in Australia

Here is a link to an intereting story in the Australian Professional Liability blog about a firm who sued a former client's wife to get her to pay the client's bills and, after obtaining default judgment against her, set out to, literally, take everything she owned.  The wife did not answer the lawsuit because she was unaware the law protected her apparently, and eventually the court ruled in her favor.  Go here for the full story, which does not end well for the lawfirm.

Revisions to the rules proposed in California - Updated

The California State Bar Association has submitted to the Supreme Court 67 proposed new Rules of Professional Conduct.  California is currently the only state whose professional conduct rules are not adapted from the ABA Model Rules, and the new proposals suggest a reorganization and renumbering to align California rules with the Model Rules. The new rules can not take effect unless they are approved by the Supreme Court.  Some of the proposals have been submitted to the court; others will be submitted in the future.  The full text of the proposal is available here.  (Thanks to the Legal Profession Blog for the update.)

UPDATE 8/3/11:  More on the story at the Legal Ethics Forum.

How not to practice law: show up to court drunk, again

The title says it all.  Unfortunately, this is one I have reported on before - at least three times (here, and here, which includes links to a video).

Class Action Claims Online Legal Forms (like "Legal Zoom") Pose Threat To Consumers.

A few days ago, The Wall Street Journal law blog posted (here) that a case I reported about back in February of 2010 (here where you can find a copy of the complaint and more links) is now set for trial on August 22.  The case involves a class action filed in Missouri claiming that LegalZoom.com, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri. 

This is not a new issue.  In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is here. LegalZoom's response is available here.

How not to practice law: use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"

In a recent decision called Grievance Administrator v. Trott (available here), the State of Michigan Disciplinary Board disbarred an attorney for mishandling client's funds.  Among other things, the attorney used money from his client's trust account to pay personal expenses at stores and to pay for his utility bills. 

It is not unusual for attorneys caught commingling and misappropriating money to claim the misconduct is due to carelessness rather than intent and to claim the problem is in their "poor bookkeeping", which, of course, they promise to improve in the future. 

The court in this case, suggested the attorney had the good sense not to make that stupid claim and added that

"[a]ttempts to blame misuse of client funds on poor bookkeeping practices seldom make any sense. With respect to the handling of trust funds, "poor bookkeeping" is often actually a refusal to assign priority to the lawyer's role as a fiduciary. The public is asked to trust lawyers with their confidences, their liberty, and their fortunes. The public is also asked to trust lawyers as repositories of funds. The duty to keep client and third party funds safe and separate from lawyer funds is a fundamental one."

For more on this case go to the Legal Profession blog here.

It does not look like there will be changes to Rule 11 after all

The Legal Ethics Forum is reporting that the effort to restore the older, tougher version of Rule 11 I wrote about here has fared well in the House but looks doubtful in the Senate.  Go here to read the comments on the issue by some of the readers of the Forum.

Roger Clemens' lawyers ask for dismissal due to prosecutorial misconduct

A few days ago, I posted (here) that the prosecution in the trial against former baseball pitcher Roger Clemens engaged in misconduct by using certain evidence the judge had excluded.  Now comes news the Clemens' lawyers have asked the court to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished.  Go here for the full story.

How not to practice law: represent buyer and seller in a transaction, then represent one of them against the other after transaction is done

Here is a link to a decision from New Jersey imposing a light sanction on an attorney who represented the buyer and seller in the transaction without full disclosure and a written waiver of the conflict and who then represented the seller in litigation brought by the buyer.  This are two obvious violations of the rules it makes me wonder why the court does not challenge the lawyer's competence.  The case is another one of those that can be used to illustrate the difficulty of determining what should be the proper sanction. 

One year suspension for attorney who told applicants that having sex with him would be part of the job

About two years ago I reported that the Illinois Adminstrator has filed a disciplinary complaint against an attorney for, among other things, telling an applicant for a poition as secretary in his law firm (in writing) that in addition to general secretarial work she would also be required to have "sexual interaction with me and my partner, sometimes together sometimes separate."  Go here for the original story, which includes the full text of the ad and more information.

Now comes news that the Illinois disciplinary board has recommended a one-year suspension for the attorney.  You can read the opinion here.  You can read more about the story here and here.

One thing that strikes about the decision is how long it took to decide the case -- almost two years since the filing of the complaint in the fall of 2009 - particularly since it is reported that the attorney did not respond to the proceeding at all! 

Comment on the report on pro bono by large firms

About two weeks ago I posted a link to a report by the American Lawyer magazine that concluded that major firms contributed significantly fewer hours of pro bono service in 2010 than in the previous two years.  See here.

In response to the report and the media commentary that followed, Esther F. Lardent, president and chief executive officer of the Pro Bono Institute, published an op-ed piece in the National Law Journal in which she argues that we should be optimistic that the policy, personnel and attitudinal changes undertaken during the past decade by large firms when it comes to pro bono provide the infrastructure and support that will keep pro bono work strong and vital at these firms.  You can read the full article here.

How not to practice law (during the Roger Clemens trial): show the jury the evidence the judge had excluded

Almost a year ago, I posted a story in my on-going "how not to practice law" series on a case in which the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning. See here.

Now comes news that the judge presiding over the Roger Clemens trial declared it a mistrial after prosecutors presented evidence the judge had earlier ruled was inadmissible.

For more on the story you can go to the Wall Street Journal law blog, Prof. Jonathan Turley's blog, the blog of the Legal Times and the Legal Ethics Forum.

West Virginia Adopts Actual Innocence Rule For Criminal Clients Who Sue for Malpractice

Here is the most recent case in a long line of bad cases that hold that a criminal defendant does not have a right to sue his or her attorney for legal malpractice.  In this instance, the West Virginia Supreme Court held that a criminal defendant who, having obtained habeas relief, pled nolo contendere to the criminal charges.  In a dissenting opinion, Justice Ketchum argued that the court's decision is contrary to 148 years of precedent as well as rules of procedure and evidence.  He also argues that the decision "obliterates a criminal plea that served a very useful purpose." You can read the opinion here and the dissent here.

For more recent news on this issue go here and here.

Attorney suspended for having his wife lend money to client; Court finds loans violated rule against financial assistance to clients

In a recent case callled Toledo Bar Ass'n v. Pheils, the Ohio Supreme Court suspended a lawyer who arranged loans from his wife to a client whom the lawyer was representing in a litigation matter.  At the time of the loans, the client was having financial difficulties and wanted to sign a proposed settlement of his lawsuit, but the lawyer wanted to continue negotiating.  The lawyer arranged for his wife to lend the client a total of  $14,500 and as part of the promissory note for one of the loans, the client agreed to assign his rights in the litigation to the lawyer's wife.  The lawyer acted as lawyer for his wife during the negotiations with the client regarding the loans and later he represented his wife in a lawsuit against his former client.

Given these facts, the court concluded that the loans constituted improper financial assistance to the client even though the money came from the lawyer's wife rather than the lawyer himself and that the lawyer had violated the rules regarding conflicts of interest.

As is common in these types of cases, the court found that Even if respondent’s sole intention was to benefit Robinson, that even if the lawyer’s sole intention was to benefit the client, "intention does not excuse his conduct" and that the mere fact that an attorney provides financial assistance to a client is a problem in and of itself because it “gives the attorney too great a financial stake in the litigation.”

Podcast on Lawyer Advertising and Marketing Online

Here is a link to a radio program on lawyer advertising and marketing online.

How should an ethical prosecutor deal with a high-publicity rape case?

A recent editorial in the National Law Journal asks "How should an ethical prosecutor deal with a high-publicity rape case?" (see here)  My answer is simple: the same way he or she should handle a no publicity one and according to what is expected by the rules of professional conduct. Why should there be any difference?

Court reverses conviction because prosecutor read privileged communication between defendant and his lawyer

In a recent case, Connecticut Supreme Court considered "whether a prosecutor’s intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant."  Finding that the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege, the court reversed the conviction - which was obtained after the lower court had denied a motion to dismiss the charges based on the prosecutor's conduct.  Interestingly, the court held that the conviction should be reversed regardless of whether the prosecutor's conduct was intentional.  The opinion was not unanimous.  You can read the opinion here. You can read the dissenting opinion here.

Thanks to the legal profession blog for the information.

How not to practice law: don't care about the details

The Legal Profession blog is reporting (here) that the California State Bar Court Review Department has suspended an attorney who allowed his office assistant to sign his name to pleadings from July 2005 to February 2007.  The attorney denied misconduct but offered this explanation of the practice: "[i]t's just easier for me to do that. I don't like details. I leave the details to her."  The opinion is available here.

Big firms make profits, pro bono plunges

The Wall Street Journal law blog is reporting on a study by the American Lawyer magazine in its just-released July pro-bono issue that concludes that many lawyers were too busy representing paying clients to counsel non-paying ones. Go here for the story in the WSJ, go here for the story by American Lawyer magazine.