More on the Dept of Justice action regarding prosecutors' misconduct

A few days ago I criticized the Dept of Justice's investigation that concluded certain prosecutors did not act intentionally after an independent investigator had found clear and intentional misconduct.  I called the whole thing "a joke."  Evidently, I am not alone in my criticism.  Today, Prof. Jonathan Turley has published a comment in which he agrees with my position, although he did not use the same language.  Being more eloquent than I, he simply said the DoJ "offered rhetorical punishment as a substitute for true punishment."  Like I said, "a joke."

You should read Prof. Turley's full comment here, but allow me to quote the beginning so you get the idea:

The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others. The slightest discrepancy in testimony or omission in reporting can bring a criminal charge from the DOJ. The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. 

Meanwhile, the Legal Ethics Forum is reporting that the firm that represented the defendant in the case in which the prosecutors engaged in the misconduct, not surprisingly, also disapproved of the DoJ's action and issued the following statement:

Today the Department of Justice demonstrated conclusively that it is not capable of disciplining its prosecutors. Apparently, prosecutors can violate the Constitution, deny the defendant exculpatory evidence demonstrating innocence, and introduce perjured testimony without any fear that they will be punished. Prosecutors orchestrated a miscarriage of justice in Senator Stevens’ case that caused the Attorney General of the United States to order the case dismissed. Trial Judge Emmet Sullivan declared that the misconduct was the worst he had encountered in 25 years on the bench. The misconduct caused a jury to render an illegal verdict, which in turn resulted in the loss of Senator Stevens’ re-election bid. And, the balance of power shifted in the United States Senate. The punishment imposed is laughable. It is pathetic. No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report.

Update on the prosecutorial misconduct report regarding the Ted Stevens case: prosecutors' office finds no intent after independent investigation found intent; prosecutors suspended without pay...

Long time readers of this blog will remember I have been following the story about prosecutorial misconduct in the Ted Stevens case and that I have posted numerous comments and links on it.  To access those, type "Stevens" in the "search this blog" box on the right side panel.

Here is the latest, as reported in the Wall Street Journal law blog:  "At the request of the chairmen of the House and Senate judiciary committees, the Justice Department turned over its internal report on the botched prosecution of the late Sen. Ted Stevens. The department publicly released [a] summary of the findings by its Office of Professional Responsibly [available here].  A separate court-ordered investigation concluded that prosecutors concealed evidence from Mr. Stevens’s defense team, but it stopped short of a criminal contempt finding."

I criticized this report here.  I argued that it was inconceivable that a report could find clear and intentional misconduct and not recommend sanctions.  (That report found the prosecutors acted intentionally to violate ethics rules).

Contrary to that criminal investigation, however, the DoJ's own report did not find that the prosecutors acted intentionally and for that reason concludes that the prosecutors should be sanctioned through forced time off without pay.

I think that is way too lenient.  An independent investigation found the prosecutors intentionally violated the rules but the prosecutors' own office found they did not.  What a joke.

I think that prosecutorial misconduct is a tremendous problem in this country and until the authorities start getting serious about it by imposing real sanctions it will continue to be a problem.  Obviously, there are exceptions, as in the Duke lacrosse team case, which resulted in the disbarment of the prosecutor, but these are rare.

The New York Times has more on the story here. The Blog of the Legal Times has more here. 

Using the prosecution of George Zimmerman for a PR course?

Obviously, there has been a lot of media coverage on the prosecution of George Zimmerman.  A lot of it has centered on the possibly unethical conduct of the District Attorney.  See here, here and here.  Given all the criticism and the material available already, John Steele of the Legal Ethics Forum has prepared a list of interesting questions, hypos, and issues that could be used to discuss important material in a Professional Responsibility class.  For the full list and a short discussion go here.

Conviction reversed because judge was working for the prosecutor at the time

The Legal Profession blog is reporting on a case in which the Minnesota Supreme Court reversed a criminal conviction because the presiding trial judge had been retained by the prosecuting attorney as a expert witness in an unrelated civil case.  The defendant asked the judge to recuse himself, but the judge denied the motion. 

Should an illegal immigrant - undocumented worker be admitted to the California bar?

At How Appealing, Howard Bashman rounds up articles about a pending application to the State Bar of California:

"Court to review request of illegal immigrant to practice law; A paralegal who was brought to the United States as a young child has been certified by the State Bar of California, raising broader questions about licensing illegal immigrants in other professions": Maura Dolan has this article today in The Los Angeles Times. In today's edition of The San Francisco Chronicle, Bob Egelko reports that "Court to decide if illegal immigrant can practice law."  And Howard Mintz of The San Jose Mercury News reports that "California Supreme Court to decide if illegal immigrant can practice law."

Thanks to John Steele of the Legal Ethics Forum for the link.

Federal bill proposed to codify prosecutors' duties

Two months ago, Sen. Lisa Murkowski (R-Alaska) introduced a bill called the Fairness in Disclosure of Evidence Act of 2012 (S. 2197), which is a bill to “require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for other purposes.” The Act begins by defining the term “covered information” to mean all “information, data,documents, evidence, or objects that may reasonably appear to be favorable to the defendant in a criminal prosecution brought by the United States with respect to (A) the determination of guilt; (B) any preliminary matter before the court before which the criminal prosecution is pending; or (C) the sentence to be imposed.”  For a comment on the bill go here.




Thanks to Roy Simon for the update.

Washington State Bar Association issues opinion on metadata

A few days ago, I posted a summary of a new opinion on an attorney's obligation when receiving a document by mistake (see here). A more complex problem arises when the document is received in electronic format (as a Word or Pdf file sent by email, for example).  In such a case, the document may contain important meta data, often easily accessible.  As explained in the ABA Center for Professional Responsibility website,

Metadata is loosely defined as "data about data." More specifically, the term refers to the embedded stratum of data in electronics file that may include such information as who authored a document, when it was created, what software was used, any comments embedded within the content, and even a record of changes made to the document.

While metadata is often harmless, it can potentially include sensitive, confidential, or privileged information. As such, it presents a serious concern for attorneys charged with maintaining confidentiality -- both their own and their clients. Professional responsibility committees at several bar associations around the country have weighed in on attorneys' ethical responsibilities regarding metadata, but there is no clear consensus on the major metadata issues. To help track current views on metadata and ethics, we've assembled the following chart.

A number of jurisdictions have issued opinions on the duties of an attorney who receives documents with metadata.  The Washington State Bar Association recently issued the most recent opinion on the subject.  You can read the full text of the opinion, which is very short, here.  Go here for a summary of the opinions on this subject from other jurisdictions. I also recently mentioned (here) an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.

According to the recent WSBA opinion, lawyers may review readily accessible metadata that an opposing counsel unwittingly transmits in an electronic document but must not use software to extract such metadata from a “scrubbed” document.  It places the duty to prevent the disclosure of data on the sender and only imposes on the recipient a duty to notify the sender that the document contains readily accessible metadata.  The recipient is not ethically obligated to stop reading the document or to return the document, but cannot attempt to dig up metadata that the sender affirmatively tried to remove. Such conduct would violate the rules regarding respect for third parties' rights and conduct prejudicial to justice.

How not to practice law: don't take depositions seriously

An attorney in Miami removed from a case by a U.S. District Judge for scheduling depositions at a Dunkin’ Donut shop, appearing in shorts and tee-shirts, drawing pictures of male genitalia to mock opposing counsel, and playing video games during depositions.  Go here for the full story.

Do attorneys have a duty to be up to date in the latest "technology"?

The Legal Talk Network has a podcast on whether there is a duty to know about modern technology here.

Another one of those "worst lawyer commercials" post

Here is yet another compilation of bad lawyer commercials. 

Suggestions on how to make sure the mandatory pro bono program in NY is a success

A couple of weeks ago I reported that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar.  See here.  Then I reported on the fact that not everyone liked the idea. See here.

Now there's more.  Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has written an article with suggestions on how to make sure New York's program works effectively.  You can read the full article here.

Nevada Supreme Court holds prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea

In a new case addressing the issue for the first time, the Nevada Supreme Court has held that a prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea.  The case is called Nevada v. Huebler and it is available here and here. 

Given Brady v. Maryland and the rules of professional conduct related to the special responsibilities of prosecutors you would think this is self evident.  But it isnt.  Some courts have held that a defendant can't challenge the validity of a guilty plea by arguing a Brady violation.  In Huebler, the court explains that "[t]his issue arises because Brady evolved from the due-process guarantee of a fair trial, . . . and therefore has been described as a trial right, . . .  but when a defendant pleads guilty, he waives several constitutional guarantees, including the due-process right to a fair trial, and any errors that occurred before entry of the plea."

After discussing the conflicting case law, the court agreed with other courts that have held that not requiring prosecutors to disclose exculpatory evidence before negotiating plea agreements could tempt prosecutors to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas.  In the end, the court concluded that

"[w]hile the value of impeachment information may depend on innumerable variables that primarily come into play at trial and therefore arguably make it less than critical information in entering a guilty plea, the same cannot be said of exculpatory information, which is special not just in relation to the fairness of a trial but also in relation to whether a guilty plea is valid and accurate.  For this reason, the due-process calculus also weighs in favor of the added safeguard of requiring the State to disclose material exculpatory information before the defendant enters a guilty plea.

It is not every day that an innocent person accused of a crime pleads guilty, but a right to exculpatory information before entering a guilty plea diminishes the possibility that innocent persons accused of crimes will plead guilty."  

Ethics 20/20 Commission has filed its final resolutions

Thanks to Andrew Perlman, of the Legal Ethics Forum and the 20/20 Commission for the following announcement and links:

Yesterday, the ABA Commission on Ethics 20/20 filed final versions of its resolutions and reports with the ABA House of Delegates.  The House will vote on the resolutions at the ABA's Annual Meeting this August.

You can find the Commission's overarching summary and report here.  If you're only interested in a description of what the Commission is proposing and why, this document should do the trick.

If you want more details, the Commission's resolutions and accompanying reports can be found at the following links:

Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)

Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)

Admission by Motion (proposals affecting the Model Rule on Admission by Motion)

Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5) 

Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)

Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

Judge Removed For Pursuing Unwanted Romance With Attorney

The Legal Profession Blog has a report on a case in which the Delaware Supreme Court has ordered the removal of a family court judge for attempting "to establish an inappropriately close social relationship with a young female attorney" who regularly appeared before him.

Article on the demise of mega firm Dewey & LeBoeuf

The law firm of Dewey & LeBoeuf was created in 2007 in the largest merger of law firms in history. During the past few weeks reports have been coming in that it is falling apart.  Last week its partners were told “to seek out alternative opportunities.” The firm is falling apart because of financial problems.   Here is a link to a short article in the New York Times that claims the firm's troubles "are only an extreme version of those facing many other firms."

Two reports on consequences for conduct in violation of Rule 3.3: one criminal prosecution of criminal defense lawyer and one disbarment

In a rare criminal prosecution of a defense lawyer, a prosecutor today at trial accused a veteran attorney in Washington of devising a scheme to use fake evidence and perjured testimony to clear a client in a drug case.  The Blog of the Legal Times has the story here.

Meanwhile in an unrelated story, the Legal Profession Blog is reporting on the disbarment of a lawyer who admitted to using false evidence in a case.

Judge dismisses drug case because of prosecutor's misconduct

Back in February, I posted a story about a judge who, after being asked by the Justice Department, refused to delete from an opinion the name of a district attorney who engaged in misconduct.  At the time I said that I was happy to see a rare example of a judge doing something to encourage proper conduct by district attorneys.

Today I am happy to report the latest chapter in this case:  the  drug-smuggling case has now been dismissed because of the prosecutor's misconduct.  The judge reportedly stated she wants to ensure that the U.S. Attorney's Office takes the misbehavior seriously.  Good for her!

You can read the full story here.

Thanks to the Legal Ethics Forum for the update.

Perspective on the American criminal justice system

Here is a link to an article by a public defender on his perspective about the criminal justice system.  Here is a key paragraph:

I have arrived at the view that the criminal-justice system is broken in ways that I never imagined as a teenage intern sitting in Judge Jones’ courtroom. While my focus is on defending individual clients, I believe that we must profoundly change our approach to criminal justice in the country. Otherwise, my task will remain Sisyphean, and the rhetoric in our public discourse about America’s commitment to the ideals of freedom and justice, so ubiquitous in this election year, will continue to mock and humiliate my clients.

Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.” 

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.

Illinois Court of Appeals on burden of proof needed to support argument that crime-fraud exception defeats claim of privilege

The Illinois Court of Appeals has issued an opinion in a case called People v. Radojcic on the level of proof necessary to support a claim that the crime-fraud exception to the attorney-client privilege applies.  You can read the full opinion here.

In this case, the state wanted to have the defendant's attorney testify and the defendant objected arguing the communication was privileged.   The state presented testimony to support its contention that the defendant communicated with the attorney to advance his attempts to commit crimes or fraud and the court held that that testimony was sufficient to meet its burden.

Specifically, the court stated that

"[t]o defeat the privilege, the party seeking disclosure must show "that a prudent person has a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." . . . Often, only the communication itself can show that the privilege does not apply. . . . In some such cases, when other evidence fails to show that the client has lost the privilege, the trial court may hear evidence in camera to determine whether the privilege applies. Before hearing evidence in camera, the judge should require the party seeking disclosure to show facts that would support a reasonable belief "that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies."

Based on this analysis, the court concluded that

"[b]efore the trial court excludes testimony from an attorney because of attorney-client privilege, the court must consider whether the party seeking to use the testimony has made a sufficient showing to give the court reason to question witnesses in camera to determine whether the attorney-client privilege applied to the communications between the attorney and the client. We find that the State presented testimony that would give a reasonable person cause to suspect that the client here used his communications with his attorney to advance his attempts to commit crimes or fraud. Accordingly, we hold that attorney-client privilege does not preclude testimony from the attorney here, and we reverse, and remand for a trial at which the State may call the attorney as a witness."

Court of Appeals holds John Yoo is immune from liability for his role in justifying torture

The Court of Appeals for the Ninth Circuit has just issued an opinion holding that John Yoo is immune from a lawsuit by a U.S. citizen who said he was tortured while detained in a military brig.  Yoo, as I am sure you remember, was one of the lawyers who designed the arguments used by the Bush administration to support the legality of its use of torture.  The opinion of the court is available here.

 For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.

A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical.  There has been a lot of discussion (and there is a lot of literature about it out there) already.

For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show.  Here are chapters 4, 5, 6 and 7 :

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

NY City Bar Ass'n new opinion on what to do when you receive documents by mistake

The Legal Quandary is reporting today that the New York City Bar Association has issued an opinion (available here) attempting to clarify what lawyers must and must not do when they receive material sent in error by an opponent.  I have not had a chance to read the opinion itself so I am just going to repeat what the LQ reported:

Part of the opinion is common sense – you . . . must promptly notify the sender, under Rule 4.4(b) of the New York Rules of Professional Conduct. The duty holds regardless of whether the communication is electronic or hard-copy, and applies no matter who sends the material. 

The tricky part? Now lawyers are tempted with the discretion to decide for themselves how to answer the next question: ”Now that I have it, and I told the other side about it, is it  it is ethically permissible to use this material?” Here the Opinion eases away from prior bans against such use.

Now, “depending on the facts and circumstances” use of the material may be appropriate, or at least allowed. Of course, you are free to engage your noblest qualities and decide that such use would be unfair, and decline to look. . . . Need you raise the issue with your client, who might be angry with you for passing up the opportunity to learn some secrets? You’re on your own there, but the comments to the Opinion suggest you may want to do that too.

So, green light right? Not so fast. The Opinion cautions that . . . “a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion”.

And my students complain that sometimes they don't get a straight answer in class!  Ha!  Welcome to the real world.

More on the new pro bono requirement in New York

Yesterday I wrote (here) that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar. The Wall Street Journal has a short piece on this here.  But the more interesting comment on this I have seen is over at My Shingle.com, a blog mostly dedicated to discuss issues related to the practice of law by solo practitioners.

In that comment, the author makes a good argument that  the new pro-bono requirement discriminates against solos and is unfair to new lawyers.  She argues, in part, that

. . .  given that law students are graduating deeply in debt, shouldn’t they focus on paying work . . . rather than working for free. Moreover, if students or new grads are going to work for free and haven’t yet found a job, isn’t it more sensible for them to spend their time finding paying work than doing pro bono?

Second, who’s going to supervise all of this unpaid labor? Have we forgotten that at the height of big law layoffs, displaced associates and unemployed lawyers flooded legal aid offices and couldn’t find work for free. Why should it be different now?

Third, . . . Isn’t it enough that many of the lawyers of my generation or older completely wrecked the legal profession by racking up huge profits-per-partner with a sense of arrogance . . .  I am outraged and offended that wealthy lawyers are passing the buck to those just starting out. Pro bono may be one of our professional obligations, but so too is training and mentoring and helping the next generation of lawyers – not making them the fall guys for our mistakes.

Although this ill-conceived program adversely impacts all lawyers, needless to say, it harms solo lawyers most of all. The New York Bar President anticipates that some new graduates will satisfy the pro bono requirement after they’ve taken the bar exam and have started working in paid positions. Uh – new solos don’t have that luxury – starting out, many solos will take any work to make ends meet as they prepare to start a firm. While it’s true that taking a pro bono or CLE can help new solos gain training, if a solo to be has a chance to do paid work for a lawyer, he or she need to jump on it because there’s no telling where the next pay check will come from.

You can read the full argument here.

Supreme Court to decide whether its ruling in Padilla should be applied retroactively

Last Monday the Supreme Court granted certiorari in Chaidez v. United States, which will give the Court the chance to settle a dispute among lower courts on whether its 2010 ruling in Padilla v. Kentucky should apply retroactively.  The case will be heard  heard and decided in the new Term (which starts next October)

In Padilla v. Kentucky, the Court held that attorneys for criminal defendants have a duty to inform their clients of the possibility of deportation as a consequence of a conviction.  Failure to provide this information would constitute ineffective assistance of counsel under the Sixth Amendment.

For more on the issue, go to crImmigration, Google News, UPI, Reuters, the Associated Press, Courthouse News, and JURIST.

Thank you to the SCotUS blog for the update and all the links.

New York to require pro bono service as requirement to admission to the bar

In my previous post I reported that the California bar is considering whether to impose a practical skills training requirement on lawyers applying for admission.  Now comes news that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar.  It will be up to the Committees on Character and Fitness to ensure that applicants have properly completed their pro bono requirement. Go here and here for more details and readers' comments.  The New York Times also has an editorial on this here.

I think the proposal has good intentions, but it may create a problem: law schools will have to create and provide those pro bono opportunities which will require them to  expand their clinical programs.  This costs money and that cost will be passed on to the students. 

California considers requiring practical skills training for admission to the bar

The Wall Street Journal law blog is reporting that the California bar is considering whether to impose a practical skills training requirement on lawyers applying for admission, which would mean applicants would have to attain a level of hands-on training before practicing.  Go here, here and here for more on the story and readers' comments.

Parody of Law & Order

The most recent episode of the show "Community" was this parody of Law & Order:

Circuit split over applicability of attorney-client privilege to patent agents

The blog "Circuit Splits" has a post on the debate over the applicability of the attorney-client privilege to patent agents here.

Prosecutorial ethics in the news

As I get ready to discuss prosecutorial ethics next week, there are two items in this week's news on the subject:

The Blog of the Legal Times is reporting on a case in which alleged Brady violations reopen 27-year-old homicide case.

The National Law Journal has an editorial urging the Supreme Court to grant review in a case that alleges prosecutorial and judicial misconduct.

What should the judge do when an attorney claims he settled a case without consent from the client?

Should a lawyer be allowed to change his mind about a settlement agreement after realizing that the jury would have given his client more money than he agreed to settle the case for?  My guess is that your quick answer would be something along the lines of  "No. A deal is a deal and if you make a bad deal you have to live with the consequences."

OK, but what if the lawyer argues that he settled the case without authorization from this client (thus, by the way, admitting to unethical conduct)?  Hmm. Well, in that case, you'd think that the client should not suffer the negative consequences of the lawyer's unethical conduct.  But, even then, can't you argue that the deal is valid and that the client's claim has to be against his own lawyer for breach of fiduciary duty? 

These questions were presented to a judge in California based on the following facts (as reported in The Recorder).

The plaintiff in the case was to be transported from a Los Angeles hospital to a psychiatric facility in San Diego.  Once loaded into the ambulance, the EMTs buckled him onto a gurney but allowed his left arm to remain free because, they said, he was not being combative.  After a few minutes, the plaintiff had taken off the restraints and jumped out of the moving vehicle onto the freeway.  He filed a claim alleging ”severe, permanent brain injury” and seeking $21 million in damages.  After a full trial, the jury came back with a verdict after four hours of deliberations.

Apparently, the lawyer for the plaintiff thought a four hour deliberation meant that the jury would return a verdict for the defense and he requested a recess to suggest a last-minute settlement negotiation with defense counsel.  The parties conferred in the hallway, with their clients present, and agreed to settle for $350,000.  The parties returned to the courtroom and after they announced they’d reached a settlement, the judge dismissed the jury.

At that point, instead of entering the terms of the settlement into the record, the plaintiff's attorney went to poll some of the dismissed jurors.  The terms of the settlement were not officially entered into the record by the defendant's counsel either.

When plaintiff's lawyer learned that the jury’s verdict would have favored the plaintiff with a damages award of $9 million, he went back into the courtroom and argued that he had made a mistake and that he did not have his client's consent to agree to the settlement.

Some have argued that the claim is ridiculous because the client was present during the settlement negotiation.  I don't necessarily agree with this.  The fact that the client is present, in and of itself, does not mean the client agreed to what the lawyer did.  But the argument does raise a number of questions.  If it is true that this particular client had diminished capacity and had brain damage the attorney may very well have acted without authority. If the client had diminished capacity why didn't he have a guardian or a representative helping make decisions?  On the other hand, if the client had enough capacity to make decisions up to the point of settlement, how come the lawyer now claims he didn't?   Either way, the lawyer seems to have acted improperly.

In a post trial motion, the attorney for the defendant argued that "If plaintiff is allowed to get away with such gamesmanship in this case there is nothing to prevent any plaintiff's counsel from testing the waters with one jury, settling the case without authority from the client, interviewing the jurors to see which way they actually were leaning, and then repudiating the settlement and seeking a retrial."

After listening to arguments, the judge decided to order a new trial.  The lawyer either acted unethically or falsely admitted to unethical conduct in order to get out of a settlement he had agreed to (which is unethical itself because it is dishonest), and may have committed malpractice, but the judge has given him a second chance.

What do you think of the judge's decision?

Can lawyers participate in website that provides answers to legal questions to customers for a fee?

The South Carolina Bar’s Ethics Advisory Committee has issued an opinion (available here) in which it addresses the question of whether it is proper for an attorney to participate in a website which offers answers to questions for a fee. 

As described in the opinion, the website

"allows members of the public to post questions concerning a number of different topics for a fee. . . . .Members of the public may ask questions that will be answered by lawyers, doctors, nurses, mechanics, and other professionals. Members of the public pay the website a fee to be able to ask questions. In turn, the professional, here a lawyer, would receive the questions from the member of the public and would answer the question. After the question is answered, the lawyer is paid a fee from the website for answering the question for the member of the public. Members of the public could be from and ask a question concerning any state or other jurisdiction and are not limited to South Carolina."

Based on these particular circumstances, the Committee concluded that lawyes are not allowed to participate in the website's services.  The Committee concluded that a lawyer’s participation under these circumstances would be improper but also that "[a]s to legal information websites in general, if a website complies with all communications and advertising rules, [a] Lawyer could participate in such a program but with specific caution against inadvertently forming an attorney-client relationship by offering more than basic information of general applicability. Where legal advice is provided, it is improper for Lawyer to accept compensation from the website provider without complying with Rule 1.8(f)."

The Ethical Quandary and the Legal Ethics Forum have more on the story.

Court dismisses case against proponent of jury nullification

In a couple of weeks I will be discussing the concept of jury nullification in my Professional Responsibility class, so I thought I would link to this story reported today.

U.S. District Judge Kimba Wood (of the Federal District Court in Manhattan) has dismissed a claim against a retired chemistry professor who was arrested and charged with a misdemeanor for repeatedly handing out pamphlets to people outside a lower Manhattan courthouse urging jury nullification.   Go here and here for more on this story.

Jury nullification, of course, refers to the right of a jury to disregard the law when making a decision.  As judge Wood emphasized, an individual should not be penalized for expressing his or her approval of jury nullification, but I think there is still some debate as to whether it would be improper for an attorney (during a trial) to remind the jury of its right to nullify, let alone ask, encourage or urge the jurors to do it.

There is a lot of literature out there on this subject and there are a number of organizations that support the concept.  Go here and here for two examples.

More criticism of the prosecutor in Zimmerman case

I recently posted links to a video and some articles and comments criticizing the prosecutor in the Zimmerman case (here and here).  Here is another one.  Given a new photo released today that shows Zimmerman was bleeding after the incident, Professor Jonathan Turley concludes that

"with this photo, the charge of second-degree murder appears even more excessive and undermines Special Prosecutor Angela Corey’s claim that she was not affected by the political pressure to charge Zimmerman. I can understand a manslaughter charge, even with the photo, but no reasonable prosecutor would consider the second-degree murder charge as based on this evidence. Corey clearly must have seen this photo and the reports before her charging of Zimmerman."

Supreme Court holds private attorney is entitled to immunity when hired by government

Last week, the US Supreme Court issued its opinion in Filarsky v. Delia holding that a private attorney, retained by a city to assist in an administrative investigation, is entitled to assert qualified immunity from a suit brought by the person who was under investigation.  For my previous coverage of the case go here, here, here and here.  You can read the Court's opinion here. For some commentary on the case you can go to SCotUS blog,

Is There an Ethical Duty to Convey Offers to Mediate?

Is There an Ethical Duty to Convey Offers to Mediate?   I think so....Discuss... here. 

What to expect from the ABA 20/20 Commission

It was recently reported that ABA's Ethics 20/20 Commission has decided not to draft a proposal on non-lawyer ownership of law firms.  However, next August the Commission will be proposing changes to Rules relating to technology and confidentiality, technology and advertising, outsourcing, and lawyer mobility issues. You can find a slightly dated list of proposals here. The Commission will be submitting final versions of the proposals next month.

Thanks to Prof. Andrew Perlman for the update.

Ethics 20/20 Commission Suspends Campaign to Draft a Proposal on Nonlawyer Ownership of Law Firms - UPDATED

The most controversial topic in Professional Responsibility circles today will continue to be unresolved for now... or, more accurately, there won't be any proposed changes to the current appproach. The ABA Journal is reporting that the ABA's Ethics 20/20 Commission has decided not to draft a proposal on non-lawyer ownership of law firms:

"In a joint statement released today, co-chairs Jamie S. Gorelick and Michael Traynor confirmed that the commission agreed at its meeting last week in Washington, D.C., to shelve plans to submit a proposal on nonlawyer ownership for consideration by the House in when it convenes during February's 2013 ABA Midyear Meeting in Dallas."

Go here for the details.

UPDATE (4/18/12): The Wall Street Journal Law Blog has more on the story here.

Judge in Zimmerman case recuses herself

Judge in Zimmerman case recuses herself.  Story here and video below (after a short commercial). 

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Thanks to the Legal Ethics Forum for the link to the video.

Some links on ethics and the prosecution of George Zimmerman for the homicide of Trayvon Martin

A few days ago, I posted a short interview with Alan Dershowitz in which he argues the prosecutor in the George Zimmerman case acted unethically.  He is not alone on this.  The Legal Ethics Forum has posted a list of helpful and interesting links on the on-going controversy.  Here is the list:

Andrew Perlman and John Steele questioned the behavior of Zimmerman's prior lawyers as they announced that they no longer represented Zimmerman.

Monroe Freedman questions the prosecutor's press conference.

Dan Markel, at Prawfsblawg, asks questions about the charging decision.

Radley Balko, at Huffington Post, looks more broadly at the ethcis of charging decsions.

Alan Dershowitz, in a TV interview we posted about, says that the probable cause affidavit was "unethical."

At National Review Online, David French and Andrew McCarthy disagreed about the quality of the probable cause affidavit.

At the Atlantic, Andrew Cohen has been running some pieces (here and here) that strike me as partisan and shallow, but check them out and see what you think.

Empty Wheel gives the probable cause affidavit a close, critical reading.

Here's the link to the prosecutor's press conference. The prosecutor, Angela Corey, discusses who she works for, what she's ethically allowed to say about the case, the no-contact rule, what level of evidence justifies a charging decision, and other issues.

George Conk, at Otherwise, has thoughts about the prosecutor.

Thanks to John Steele of the Legal Ethics Forum for sharing this great list.

Alan Dershowitz thinks the prosecutor in Zimmerman case was unethical in arguing for probable cause

Here is a video of an interview with Harvard law professor Alan Dershowitz in which he argues the conduct of the prosecutor in the case against George Zimmerman was unethical.




Thanks to the Legal Ethics Forum for the link.

Lousiana prohibits applicant from ever applying for admission to the bar in the future

The Legal Profession blog is reporting today on a case in which the Louisiana Supreme Court has not only denied a bar applicant's request for admission to the bar, but has decided to "permanently prohibit her from reapplying in the future."  The opinion is available here.

The day before the applicant was to be sworn in, her law school rescinded her Dean's Certificate in light of allegations of embezzlement of funds of the Student Bar Association, of which she had been the president.  As a result, admission was denied and a commissioner was appointed to take character and fitness evidence.  The record established that she destroyed SBA records that she had in her possession, failed to cooperate and "forged the signature of her attorney on a letter directing her bank not to comply with a subpoena issued by her law school."  She was found to have engaged in unauthorized practice of law and to have improperly shared fees with an attorney.

The court concluded that "[g]iven the egregious nature of [her] wrongdoing, as well as her pattern of misconduct occurring over many years, we can conceive of no circumstance under which we would ever grant her admission to the practice of law in this state."

I don't think I have ever heard of a lifetime ban like this one, although I, of course, have not read every single decision denying admission to an applicant.  

How not to practice law: stop paying child support

The New York Appellate Division for the First Judicial Department has indefinitely suspended a lawyer after it was found had not payed child support in three years and was almost $91,000 in arrears.  The order is available here.  The suspension will remain in effect until the court is satisfied that the attorney has paid in full. 

Thanks to the Legal Profession blog for the link.

Congress discusses reform to discovery in criminal cases; Dept of Justice objects

Last month, Sen. Lisa Murkowski (R-Alaska) introduced such a bill to broaden the scope of information that prosecutors must disclose to defense lawyers and more than 100 prominent lawyers have signed a letter urging Congress to take up criminal discovery reform.  The Justice Department, however, said in a statement that the proposed discovery legislation “would upset our system of justice by failing to recognize the need to protect interests beyond those of the defendant” and “would radically alter” the balance between protecting defendant rights and safeguarding against witness retaliation, disclosing ongoing investigations and protecting the national security.  The Blog of the Legal Times has more on the story here.

Can an entity file a pro se claim? Should the entity suffer the consequences because a complaint is filed by a non-lawyer?

The Illinois Supreme Court recently heard oral arguments in an interesting case that raises some interesting questions as to what constitutes the practice (and unauthorized practice) of law and as to what is the proper consequence in a case where a party is represented by someone who is not authorized to practice law.

The facts of the case are relatively simple.  The City of Chicago Department of Administrative Hearings entered four default judgments against a corporation, for certain ordinance violations.  Upon hearing about this, the president of that corporation filed four motions to set aside the default judgments, alleging that the City did not properly notify the corporation of the hearings regarding the violations. After a hearing to discuss the matter, an administrative law officer denied relief and instructed the president of the corporation that he had a right to appeal.  The officer told him that he could go to a certain office and file the necessary paperwork.  The president immediately went to the office, completed a form and filed it.  The form was a pro se complaint for review by a trial court under the Administrative Review Law.  Approximately six months after the complaints were filed, an attorney filed an appearance on behalf of the corporation at which point the City moved to dismiss the complaint on the basis that the corporation’s president who had filed the complaint in the first place was not a licensed attorney and, thus, was unauthorized to file complaints on behalf of a corporation. The trial court granted the City's motion and denied the corporation's motion to amend the complaint to include the signature of its attorney.

On appeal, the City is requesting the Supreme Court to recognize that an entity can never file a pro se claim and to impose an absolute rule that a complaint filed by a non attorney other than in a pro se case must be considered void ab initio.

The corporation is arguing that a better policy is to consider the circumstances and to decide cases on a case by case basis.  In this case, either because the filling out of a form at the direction of the administrative law office was not the practice of law to begin with or because, if it was, there was no harm to the corporation, the corporation should not lose its rights to appeal.  According to this view, the main thing is to consider the reasons why we have a rule against the unauthorized practice of law to begin with.

It seems to me this second view is more sound, and, if nothing else, more fair.  I understand we need to protect the public from inadequate representation by people who are not qualified to practice law, but that is not what happened in this case. 

The case is called Downtown Disposal Services v City of Chicago and the lower court opinion is available at 943 NE2d 185 (Ill App 2011).  You can watch the oral argument here.  If you prefer just the audio, you can listen to it here.

Illinois adopts new rule to help deliver legal services after major disaster

The Illinois Supreme Court announced today that it has adopted a new rule to facilitate the delivery of legal services in an emergency resulting from a major disaster.  In the case of an Illinois disaster, new Supreme Court Rule 718 would allow attorneys who are licensed in another state to provide pro bono publico legal services to residents of Illinois. In the event of a disaster in another state, the rule would allow attorneys licensed outside of Illinois to provide pro bono legal services to residents of the stricken state who have been displaced to Illinois because of the disaster.  The rule also would allow attorneys licensed in a stricken state to provide legal services in Illinois as long as those legal services arise out of and are reasonably related to the lawyers’ practice of law where the major disaster occurred.   Illinois Lawyer Now has more information here.

The rule is based on the ABA's "Model Court Rule on the Provision of Legal Services Following a Major Disaster" which has now been adopted in at least 14 states.  (Go here for a chart on which states have adopted the rule.)

WSJ comment on issue of whether non lawyers should be allowed to own lawfirms

The issue of whether non-lawyers should be able to "own" (as in own investments in) law firms is back in the news.  I reported on this most recently here.  Today, The Wall Street Journal law blog has posted a short comment on the subject here.  It explains that the main argument against allowing non lawyer ownership is that opening up law firm ownership will erode professional ethics, while the main arguments in favor or allowing it are that expanding ownership could help smaller law firms compete with the big firms, and that it could help make legal services more accessible to consumers.

60 minutes segment on prosecutorial misconduct

Last night the TV show 60 minutes aired a segement on prosecutorial misconduct in a case in Texas in which the defendant was recently exonerated (after 25 years in prison) by DNA evidence.  It has been alleged that the prosecutor in the case knowingly withheld evidence it was legally obligated to disclose to the defendant's lawyers.  The prosecutor is now a judge and, according to the show, currently under investigation for the incident.  Here is the full segment.  It lasts about 14 minutes, but there are a couple of commercials within it.  Pay attention to the prosecutor's "apology" (at about the 8 minute mark). He apologizes because "the system" failed, but then denies any misconduct on his part. I wonder which part of the system he means failed? I have more comments below. Please continue reading after you watch the video. If, for some reason you can't see the video below, you can watch it here.



It seems to me that the real issue in this case starts with the question of whether the evidence that was allegedly withheld was "exculpatory." Note in the video that the attorneys for the defendant argue the evidence would have proven the defendant was innocent while the current lawyer for the former prosecutor claims it would not have.

If the evidence was "exculpatory", then the prosecutor had a duty to disclose it. Since there is evidence he did not disclose it, that would lead you to conclude that he acted in violation of his duty. Note that under the current Model Rules, the prosecutor would clearly have a duty to disclose the documents in question because the duty under the MRs is broader than the duty under previous case law (namely Brady v Maryland).

The problem with the discussion of the issue by the lawyers in the video is that whether the documents would have proven the defendant innocent is actually irrelevant. "Exculpatory" does not mean that it would have exonerated the defendant or proven that the defendant was not guilty. It only means that there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See Kyles v Whitley, 514 U.S. 419 (1995).

Based on this, I think the evidence was exculpatory and that, therefore, there was a duty to disclose the information.

The statement by the current lawyer for the then-prosecutor that a claim that his client engaged in unethical conduct is "unwarranted" is ridiculous. Given the facts, the claim is clearly warranted. Also, it bothers me that the lawyer claims we are dealing with "speculation" about things that happened 25 year ago. Yet, here is one thing that does not seem to be speculation: the defendant did not get the documents. No one - not the prosecutor/now judge nor his lawyer - disputed that. The only thing they claim is that the prosecutor now says he could not believe he wouldn't have had a conversation with the defendant's attorney about the case. He did not claim that he did in fact disclose the information. As to that the best he could do was to say he did not remember.

UPDATE 4/21/13:  A judge has decided there is sufficient evidence that the former prosecutor should be tried for criminal contempt, tampering with evidence and tampering with government records. He said Anderson concealed the availability of exculpatory evidence. Go here for more details.

Former prosecutor disbarred for soliciting false testimony

The former chief drug prosecutor for Wayne County, Michigan has been disbarred for her role in soliciting false testimony. Go here for more information.

Update on the debate on whether states should allow fee sharing with non-lawyers and investments by non-lawyers in law firms - UPDATED

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed.  The opinion is available here.  In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss.  The opinion in that case is available here.  The Wall Street Journal law blog has more information. 

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers.  Go here for more information.

UPDATE (3-25-12):  The Ethical Quandary blog has more here.

More comments on Supreme Court's decision on ineffective assistance of counsel

Three new articles in the New York Times discuss the importance of the Supreme Court's decisions on ineffective assistance of counsel.  The articles can be found here, here and here.  As one of the articles explains "[t]he Court's decisions affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. . . . Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with . . . little oversight . . ." In addition, the SCotUS blog has detailed analysis of the opinions here.

Article calls for New York to change its position on metadata

Here is an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.  The article concludes that these conflicting positions "serve only to place New York lawyers at a tactical disadvantage" and, for that reason, calls for New York to change its approach to the issue.

Thanks to the Legal Ethics Forum for the link.

Comments on yesterday's Supreme Court's decisions on ineffective assistance of counsel

The SCotUS blog is listing the following articles on yesterday's Supreme Court decisions on ineffective assistance of counsel:

Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.

Also, Orin Kerr has a comment at The Volokh Conspiracy.

Supreme Court decides two cases on ineffective assistance of counsel

Today the Supreme Court announced two decisions in cases involving claims of ineffective assistance of counsel that essentially conclude that criminal defendants have a constitutional right to effective lawyers during plea negotiations.  The Court, also set the standard to meet in order to obtain relief when the defendant's argument is that the attorney's ineffective assistance resulted in the rejection of the plea offer.  Both cases were decided by 5 to 4 votes.  I have not had a chance to read the opinions myself, so I will reserve my opinion for now.  Meanwhile, however, here is a quick summary (courtesy of the SCotUS blog) and a few links.

In the first opinion, Missouri v. Frye, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.  The oral argument for this case is available here.

In the second opinion, Lafler v. Cooper the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.  The oral argument is available here.

The New York Times has more the story here.

More comments on the prosecutorial misconduct report from the Ted Stevens case

The New York Times has published an editorial on the need for the Department of Justice to "take an even closer look at the powers and responsibilities of its prosecutors, after a scathing new report on the case by a court-appointed investigator" after the DoJ acknowledged pervasive prosecutorial misconduct in the corruption trial of the late Senator Ted Stevens.  The editorial is available here.

The LawProfs Blawg has a more detailed discussion of the report here.

The Legal Profession blog has a short comment here.

The Blog of the Legal Times is reporting (here) that the Senate Judiciary Committee will hold a hearing on March 28 at 10 a.m., to discuss the allegations of prosecutorial misconduct in the Ted Stevens case.  The author of the report is expected to testify.

More comments on the prosecutorial misconduct report from the Ted Stevens case

Go here and here for articles with some analysis on the report on prosecutorial misconduct in the Ted Stevens case. 

Thanks to the Legal Ethics Forum for the first link.

Oklahoma considers banning litigation financing

Back in January, 2011, I reported that the Illinois legislature rejected a bill that attempted to regulate entities that lend money to litigants in exchange for a percentage of the amount recovered in the case.  Typically, the interest rates on those loans are very high (I have seen ads that say the rates are over 45%, for example.)  For some background information on the issues related to this industry, you can take a look at the discussion of the legal and ethical issues that relate to the litigation loan industry in Room for Debate, the Legal Ethics Forum and The Wall Street Journal Law Blog, the NY Bar Association and the New York Times. 

Now comes news that in Oklahoma, Oklahoma Senate Bill 1780 would make it against the law for a company to make a loan to a plaintiff that would be paid back from settlement funds or a jury award. It would apply to any case pending in an Oklahoma state court or any federal court in the state.  Go here for the full story.

Contingency fees based on what you can save the client - "reverse contingency"?

You are representing a client in a contract dispute where the opposing party claims he is owed $10,000 for services rendered. The client likely will not be able to pay your hourly rate to handle the matter. Can you enter into a “reverse contingent fee” agreement whereby you will be entitled to a percentage of the money that you save the client?  ETHICSearch has published a short article explaining why the answer is yes, as long as the fee is reasonable, of course.

Ted Stevens report has immediate effect: bill to change discovery obligations

Lawmakers filed a new bill Thursday that would change discovery rules in federal criminal cases, requiring prosecutors to turn over any information that would be favorable to the defense as soon as possible – or face sanctions.  Go here for the full story.

Big news of the day: The report on prosecutorial misconduct in the Ted Stevens case has been released, finally!

The long awaited and controversial report on prosecutorial misconduct in the Ted Stevens case has finally been realeased. The 500+ page report is available here.  The Justice Department hasn't yet published its internal review of the case, but it has issued a press release available here (thanks to the Legal Ethics blog for that link!).  For more on the latest news on the report, go to the Blog of the Legal Times (here, here, here and here) and the Wall Street Journal law blog.  For more on the background story involving the Ted Stevens case go here, here, here, here, here and here.

Indiana State Bar Association Opinion: Attorneys should Not Use Group Coupon Programs

Unlike other states that have addressed the issue, the Indiana bar has issued an ethics opinion (Ethics Op. No. 1 of 2012) which concludes that using "groupon" or other similar group coupon or daily deal arrangements to market legal services is probably unethical.

The opinion states that using these programs may violate a number of Indiana rules of professional conduct including rules 2.1, 1.15, 1.16, 5.4 and 7.2 because the programs would allow someone other than the attorney to hold client funds or create conflicts of interests or allow the sharing fees for referring clients.

The full text of the opinion is available here.

In contrast, ethics opinions in other states have found that is not unethical for lawyers to participate in group coupon programs.  For example, see New York State Ethics Op. 897, North Carolina Ethics Op. 2011-10, and South Carolina Ethics Op. 11-05.

Debate on judicial recusal at the Supreme Court

The University of Pennsylvania Law Review sponsors a website called PENNumbra which hosts debates on important topics.  The debates usually involve two authors.  Each one writes an opening statement, a reply to the other's opening statement and a closing statement.  Today the debate is on whether the Supreme Court should adopt rules or guidelines to regulate recusal by the justices.  The first opening statement is now available here.  Check the website for the future installments.

Should state guarantee counsel for indigent parents in abuse and neglect proceedings?

For decades poor parents in New Hampshire were provided lawyers if they could not afford them, but funding was cut during the last legislative session.  The issue is now before the state's supreme court and the First Amendment Center is reporting today that the oral arguments on whether indigent parents have a right to court-appointed counsel in abuse and neglect proceedings will be open to the public.  Unfortunately, I don't have the name of the case or any more information.

Update on the debate on whether states should allow fee sharing with non-lawyers and investments by non-lawyers in law firms

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed.  The opinion is available here.  In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss.  The opinion in that case is available here.  The Wall Street Journal law blog has more information. 

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers.  Go here for more information.