Judge in Trayvon Martin murder case denies request to regulate speech

The New York Times is reporting that the judge in the Trayvon Martin murder case on Monday denied a prosecution request to bar lawyers for George Zimmerman from using a Web site about legal issues, as well as social and traditional news media, to comment about the case.  Go here for the full story.

Sanctions for misconduct during depositions

In class we discuss a few cases illustrating improper conduct during depositions.  There are many such cases - and some videos - that are useful for this purpose.   Unfortunately, the problem does not seem to go away.  In part, the problem continues because by their very nature depositions are conducted away from the scrutiny of the court and many lawyers think that they can get away with being overly aggressive and insulting.  I don't know who they are trying to impress; but savy lawyers know how to counter those tactics.  Earlier this year, the ABA Journal reported on a case in New York where an attorney was imposed a $10,000 sanction for his behavior at a deposition.  See here, here and here.  The lawyer was also ordered to pay for the attorney's fees for the costs of pursuing the sanctions motion.  As reported yesterday, this bill came out to a little over $36,000.  So, over $46,000 out of your own pocket for being obnoxious and not knowing how to behave during a deposition should make you want to think twice about learning how to defend a deposition properly...

How not to practice law: beat up your client with a baseball bat!

The Legal Profession blog is reporting today (here) on a recent case in which an attorney was disbarred for, among other things, beating up a "defenseless client" with a baseball bat causing severe injuries.  The court agreed with the Hearing Panel that "causing such injuries to his client constituted a violation of Mr. Robinson’s duty to his client."  The opinion is available here.

So, just to be clear, you have a fiduciary duty to not beat up your client with a baseball bat!

All kidding aside, I wonder what the client did that made the lawyer lose it to the point of wanting to beat him up with the bat.  According to this article, the attorney claimed that the client broke into the lawyer's home but those charges were dismissed. 

Now, let's assume that a client breaks into a lawyer's home and threatens the lawyer or the lawyer's family.  Should the lawyer be disciplined for taking action to defend his life or his family?  I guess it is all a matter of degree.   Just a few days ago there were reports of a recent case from a jurisdiction that recognizes the right of a homeowner to use deadly force to defend his home.  See here and here.

Update on Covington and Burling's disqualification in State of Minnesota v. 3M

Back in August I posted a story about the lawsuit filed by 3M Corporation against the law firm Covington & Burling (here) for an alleged violation of its fiduciary duties to 3M, and about two weeks ago I commented on the fact that Covington was disqualified in the underlying case that gave rise to the allegation.  In that case, Covington was representing the state of Minnesota against 3M who was a former client.  The court found that the current representation was substantially related to the former representation of 3M and granted the motion to disqualify.  See here.

Now comes news that Covington and the state of Minnesota have appealed the disqualification order. 

In its notice to appeal (available here), Covington (represented by different counsel) argues that the lower court erred because none of 3M's confidential information was "known to or used by" Covington lawyers representing the state of Minnesota and that the firm currently has a screen in place to prevent the attorneys who had represented 3M in the past from communicating with the lawyers who were currently representing Minnesota against 3M.

Covington may have a good argument in support of its position, but it is none of these.

In the order to disqualify, the court explained the analysis followed by courts in the state to decide these types of cases.  It is possible the judge was wrong about that, but since -to my knowledge - no one has made that argument I will assume that this is correct.  The Minnesota Supreme Court has established a three-part test to determine whether an attorney may represent a client in an action against the attorney's former client:  (1) first determine if the two representations are substantially related; (2) if so, it is presumed, irrebuttably, that the attorney received confidences from the former client and it is also presumed, but subject to rebuttal, that these confidences were conveyed to the attorney's affiliates; (3) once the presumptions are applied and a decision has been reached as to whether the conflict should result in disqualification, the court may consider other "competing equities" such as the effect of the disqualification on the party that loses its representation.

From what I have seen/read about the case at this point, it seems to me Covington is on the losing end of the first two parts of the analysis, but may have something to say on the last one.

For purposes of Rule 1.9, matters are “substantially related” if there is a “substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  It is possible Covington may want to argue that the two representations were not substantially related, but the disqualification order makes a good case for its conclusion that they are.   And, more importantly, once the court has concluded that representations are substantially related, Covington cannot argue (as it is now trying to do) there there is no evidence that its lawyers have used or disclosed confidential information.  Covington wants to argue that the court "ignored critical elements of the rule" - meaning rule 1.9 about former client conflicts of interest - and that the court erred because it failed to address whether the firm used or disclosed confidential information. 

This argument is weak.  As stated above, once the court concludes the former representation and the current representation are substantially related, it is presumed (irrebuttably) that information was acquired and also - subject to rebuttal - that it was shared.  The firm would have to prove that the confidential information was not and could not have been shared in the past and that it will not be possible to share it in the future by proving the use of timely and effective "institutional mechanisms" (usually called "screens") created for that purpose.

In its notice to appeal, Covington claims the firm "currently" has a screen in place.  However, since the rules require that the screen has to be "timely", a screen that is allegedly in place now may not be sufficient to solve the problem "back then".

The problem is it is not clear when that screen was implemented, since in its order to disqualify the firm the judge concluded that there was no screen in place.  In fact, the judge stated that "Covington admits to not imposing screens or other protections to safeguard 3M’s information. Covington also admits to not taking any measures to prevent Covington lawyers from sharing confidential information with others in the firm." Given these conclusions, applying the two presumption analysis, the court correctly concluded that it must be presumed that Covington received and shared 3M’s confidential information.  If the judge is correct that Covington admitted not having a screen back then, the fact that it has one now is irrelevant.

For these reasons, it seems to me Covington will have a tough time arguing its case.

Covington's better argument, it seems to me, is based on the third part of the test mentioned before.
 
3M filed its motion to disqualify more than a year into the litigation of the case and claimed that it was not until then that it had noticed the conflict because of a change in its management.  The story is plausible, but not necessarily enough to defeat the argument that a disqualification that far into the litigation would cause an undue burden on the party that all of a sudden loses its representation.

So, bottom line, it seems to me the case will come down to this:  what is more important?,  the fact that Covington seems to have been operating under a conflict or the fact that eliminating the conflict now would cause an undue burden on the party that loses its lawyer.

If it is the former, the order should be affirmed and Covington would be disqualified; if it is the latter, the order should be reversed and Covington would be allowed to continue its representation of the state against its former client.

What will happen next, is anyone's guess.  Stay tuned....

Strong criticism of recent report out of DC hearing committee

Mike Frisch (Georgetown) has strong words about a recent report in Washington DC, which he calls "the worst hearing committee report in DC Bar history."  You need to read the full comment here to get see why.  In a nutshell, the report exonerates four attorneys on charges of conflicts of interest and dishonesty in a case involving the alleged abuse and manipulation of an elderly woman even though the evidence supported the conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. Professor Frisch is concerned (to say the least) about the consequences of the opinion: it makes it nearly impossible to prosecute lawyer elder abuse and discourages other victims from coming forward.

Comment on allegations against former prosecutor in Texas for concealing evidence

Back in March I posted a comment on a case in Texas in which a judge was under investigation for misconduct when he was a prosecutor.  My original post, which includes a segment from the tv show 60 minutes on the case, is available here.  Today, Professor Jonathan Turley published his own comment on the case here.

WSJ on firms buying lunch for clients using clients' own money

In class I am often asked if a lawyer violates the rule that says lawyers can't provide financial assistance to clients if the lawyer takes a client to lunch and pays the bill.  Well, it turns out that the question may be a non-issue since firms may be charging the clients for those lunches after all...  In a short article today, the Wall Street Journal law blog discusses the issue (here).  It starts:  "Here’s a tip for law firms who want to keep clients happy: Don’t buy them fancy lunches with their own money. . . . [Clients are] fighting over line items such as photocopies and food, and pushing back hard on charges for pricey legal research databases such as Westlaw and LexisNexis. Their position: many of these costs are law firm overhead, and so shouldn’t be passed on to the client in the first place."

Covington and Burling disqualified in case against former client for conflict in violation of Rule 1.9

Back in August I posted a story about the lawsuit filed by 3M Corporation against the law firm Covington & Burling arguing that the law firm violated its duties to 3M when it allegedly dropped 3M in one matter to accept representation of another client (the state of Minnesota) against 3M.  Go here for that original post.

Meanwhile, 3M also filed a motion to disqualify Covington from representing the State of Minnesota in the underlying case and today the court has granted the motion to disqualify.  Interestingly, however, the basis for the ruling is not that Covington violated the "hot potato doctrine" (which penalizes a firm for dropping a client to clear the way to accept the representation of a new client) as argued by 3M.  The court simply held that Covington violated rule 1.9 on successive conflicts of interest.  Either way, 3M has scored a big win.

It remains to be seen what effect the disqualification order will have on the civil claim, but I am sure 3M will try to get some mileage out of the strong language by the judge who concluded that “Covington has exhibited a conscious disregard for its duties of confidentiality, candor, full disclosure, and loyalty to 3M..."

Interestingly, in disqualifying Covington, the judge goes into two different types of analysis used in cases of former client conflicts.

According to Rule 1.9, "[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

Thus, the big question is whether the previous representation of 3M was substantially related to the current representation of the state.  If so, Covington would be prevented from continuing to represent the state.  Following the generally accepted analysis in similar cases, the judge stated that matters are “substantially related” if there is a “substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”

To address the issue, the judge examined the character and content of the previous representation of 3M and concluded that Covington had represented 3M in the past in matters that were substantially related to the case in which it was now representing the State of Minnesota against 3M.  The judge therefore concluded that "Covington has “switched sides” by representing a client who is now suing its former client" and that "[b]y representing the State, Covington will benefit by contradicting the very positions it had long advocated on 3M’s behalf."  The judge, thus, concluded that "[b]ecause a lawyer may not use any information “relating to” a prior representation to the detriment of a former client, disqualification is necessary where an attorney provided legal services to a former client relative to matters substantially related to the subject matter of the present suit."

Once this conclusion is reached, typically a court would have enough reason to justify disqualifying a firm, unless the firm (and its client) could convince that there are other reasons that show disqualification would be too onerous on the client at that point.  Covington may have an argument along those lines because 3M waited so long to protest its representation of the state. I expect Covington to argue that on appeal.

But the judge did not stop there because the case law in the state of Minnesota appears to be slightly different from that in other states.

It appears that the analysis used by courts in Minnesota combines the previously mentioned analysis related to whether the cases are substantially related with the analysis typically used for cases in which the conflict is created by a lawyer who moves from one firm to a new firm.  In a case like that, there is a presumption that the moving lawyer acquired confidential information about his or her former clients (left behind in the old firm) (the so-called "first presumption") and that he or she will share (or has shared) that information with the new firm (the "second presumption").  In support of its opposition to a motion to disqualify, the new firm can try to rebut either presumption.  If unable to do so, the firm would be disqualified from representing an interest adverse to those of a former client of the new attorney joining the firm.

Using this analysis, the judge also found that Covington should be disqualified. The judge found that the State (and Covington) simply could not rebut the presumption that Covington had received relevant confidential information from 3M nor the presumption that Covington shared that confidential information within the firm because Covington admitted to not imposing screens or other protections to safeguard 3M’s information.

I don't think this second part of the judge's analysis necessarily relevant to the facts of the case (because there was no lawyer moving from one firm to another), but it seems to be part of the analysis used in Minnesota and in the end the result is the same.

As expected, Covington has expressed it disagrees with the court's conclusions.  Timothy Hester, chair of Covington’s management committee stated: “The State of Minnesota has been a client of this firm on environmental matters since 1995.We respectfully disagree with the court’s ruling. We believe 3M failed to identify an actual conflict of interest and its attempt to disqualify the firm should in any event be barred because it came 15 months after the case was filed. 3M is a former firm client and the State of Minnesota’s current environmental case against 3M is not substantially related to a food packaging matter that we handled for 3M many years ago.  Our client, the State of Minnesota, will be weighing its options, including an immediate appeal.”

You can read the order in full by going here.  For more on the story go here and here.

How not to practice law: Steal money from clients, then argue in your defense that you needed the money!

Here is another installment of the on-going series on how not to practice law.  In this new case, a lawyer was disbarred for, among other things, stealing money from clients.  That's not newsworthy, of course, since that is the typical sanction for misappropriation (although I just posted a story about a case in which the attorney unjustifiably in my opinion, got away with a lesser sanction).  What is interesting about this particular case is the explanation given by the lawyer "in his defense." 

In response to charges of theft of estate funds, the attorney testified that he  used the funds because he needed them for his business operations in difficult times and that it was all due to "the worst financial crisis in our nation's history."   In other words, he claimed he stole the client's money because the economy was bad and he needed the money.  The court said the lawyer's testimony can only be characterized as "a lame attempt to rationalize his theft."  I agree.  If you think that argument is going to help your case, you better look for another line of work.  Oh, wait!, you do need to look for another line of work because you just got disbarred!  

You can read the full opinion here.

Lawyer steals money from clients but does not get disbarred because he had been in the military; I don't get the connection

The Legal Profession blog is reporting on a recent opinion from the Ohio Supreme Court in which an attorney was indefinitely suspended  for  violations of the Rules of Professional Conduct in  his dealings with more than 20 bankruptcy clients including the fact that the attorney accepted fee advances from those clients but deposited the unearned fees in his office operating account and spent the clients’ funds on personal and office  expenses without performing the legal services for which he had been retained. In other words, that he stole client's money.

You would think this is not newsworthy since stealing from clients is essentially the easiest way to get disbarred, right?  But that is the strange thing.  Here, the attorney was not disbarred.  There is a distinction between indefinite suspension (a suspension that can be lifted) and disbarment (which, at least in theory, is permanent).

What made the difference in this case?  In imposing an indefinite suspension rather than permanent disbarment, the court noted as mitigating factors that the attorney had served in the U.S. Air Force for 20 years,  expressed sincere remorse and  accepted  full responsibility for his actions, cooperated with disciplinary authorities, and was making ongoing attempts to make restitution to his clients.  You can read the opinion here.

I don't understand this. The lawyer has admitted that he stole money from clients in multiple instances but he doesn't get disbarred (which the court says is the proper sanction for misappropriation) because he is a veteran? What does military service have anything to do with anything? With all due respect to the members of the military all of whom should be admired for their courage, why should military service operate as a mitigating factor and not other kinds of service? What if a lawyer had been a nurse for 20 years before going to law school, or a high school teacher or a firefighter? How do we make the distinction? 

I just don't think past military service is relevant at all.  The lawyer may have served the country admirably for 20 years in the past, but now he was stealing money from clients.  He should have been disbarred.

Judge found guilty of judging a defendant and imposing sentence without trial

Just when you think you have seen (or heard) it all... Here is a report on something I had not heard before, other than at the movies.  Remember that movie The Star Chamber in which Michael Douglas plays a judge who gets together with other judges to decide cases on their own and then impose their own kind of vigilante justice?

Well, here is a report of a case in which the New York State Commission on Judicial Conduct accepted a 122 page stipulation that resulted in the resignation of a judge.  Among other things, it was determined that the judge found a defendant guilty without a plea or trial and imposed sentence without giving the defendant an opportunity to contest charges.  I have to say, I don't think I had heard of a judge doing that before. 

Thanks to the Legal Profession blog for the report.

How not to practice law: bring your recreational drugs to court, then drop them in the middle of court in front of a police officer

Lowering the Bar (here) and Prof. Jonathan Turley (here) are reporting today on a story about a New Orleans prosecutor who recently resigned after he dropped some marijuana out of his pocket in the middle of court in front of a police officer. In this case, the incident cost the prosecutor his job.  Should he be disciplined too?  If so, what sanction would you impose? 

These questions raise the issue of whether violating the law, in and of itself, regardless of what the law is, is a punishable offense for professional responsibility purposes.  There has always been some debate as to whether courts are consistent when imposing sanctions for illegal conduct. Often, violations of tax laws are treated leniently, while misappropriation (ie, stealing) violations are dealt with harshly.  DUIs, sexual misconduct, misdemeanor shoplifting and others are somewhere in between.  Part of the analysis has to do with the danger posed to others and whether the "others" involve children or other vulnerable people who are less likely to be able to protect themselves, or whether the illegal conduct involves a so-called "victimless" crime.  (It is debatable whether there is such a thing as a "victimless crime", but that is another story.)

I think there is something to say about taking into account the circumstances and the character of the conduct.  I do disagree with the cases that impose the lightest of sanctions for illegal conduct, but I don't think that all illegal conduct is of the same character or that disbarment is always the proper sanction.  I also think it is important whether the conduct is an isolated incident and whether the person would benefit from counseling or treatment, particularly if it is a case of addiction. 

Go here, here and here for three recent examples of cases on the issue of appropriate sanctions for illegal conduct.  For many more, click on "sanctions" and scroll down.

Maryland Opinion Generally Approves Use Of ‘Daily Deals' like Groupon

Ethics opinions in at least eight states have addressed whether a lawyer's use of a third party company that brokers discounted services to online customers violates rule of professional conduct.  I commented on this issue for the first time about a year ago, when the State Bar Associations of both North Carolina and South Carolina approved of the practice (here where you can find links to the opinions).

Since then, a majority (although not by much) of the ethics committees that have considered the issue has found that the practice is not improper.  In addition to North Carolina (Ethics Op. 2011-10) and South Carolina (Ethics Op. 11-05),  Nebraska (Ethics Op. 12-03) and New York (Ethics Op. 897) have approved the practice.   I commented on (and linked to) the NY opinion last January (here). 

Maryland is now the most recent jurisdiction to have approved it.  The Maryland State Bar Association Committee on Ethic recently issued an opinion holding that the practice is not per se prohibited as long as the lawyer takes steps to ameliorate potential ethical concerns that may be implicated by such arrangements.  See, Maryland Ethics Op. 2012-07.

In contrast, three states have issued opinions disapproving of the practice: Alabama (Ethics Op. 2012-01),

Indiana (Ethics Op. 1 of 2012) and Pennsylvania Ethics Op. 2011-027 (2011).  I reported (with links) on the Indiana opinion here and on the Alabama opinion here.

For more information you can go to the ABA/BNA Lawyers Manual on Professional Responsibility, 28 Law. Man. Prof. Conduct 600.

How not to negotiate a settlement agreement

I never saw the TV show "Arrested Development"; a friend just sent me this clip....

ABA Commission on Ethics 20/20 releases drafts on Choice of Law issues

The ABA Commission on Ethics 20/20 has released for comment its most recent drafts of proposals.  As explained by one of the commission members over at the Legal Ethics Forum:

The first draft proposal would permit lawyers and clients to agree that their relationship will be governed by a specific jurisdiction’s conflict of interest rules.  The proposal is designed to help lawyers and their clients predict, with more accuracy than Model Rule 8.5(b) can provide, which jurisdiction’s conflict rules would govern the lawyer’s representation of a client.

The second draft proposal would address a choice of law issue that is arising with greater frequency because of inconsistencies, domestically and abroad, regarding the permissibility of non-lawyer ownership of law firms and fee sharing with non-lawyers. The issue is whether a lawyer in a jurisdiction that prohibits such ownership or fee sharing may divide a fee with a lawyer in a different firm in which such ownership or fee sharing occurs and is permitted by the Rules applicable to that firm. The Resolution does not propose any change to the existing prohibition in Model Rule 5.4 against non-lawyer ownership of law firms or the sharing of fees with non-lawyers.  The Resolution addresses only fee divisions between lawyers in separate firms under Model Rule 1.5 when one of the lawyers is in a firm that has nonl-awyer owners or shares fees with non-lawyers, as permitted by the rules of the jurisdiction that govern that lawyer’s firm. The cover memo from the Commission's co-chairs explains that the Commission “has made no decision regarding the nature and substance of any Resolutions on these subjects. The decision to file any such Resolutions will be made at the Commission’s October 2012 meeting.  In the meantime, the Commission requests that any comments on these new drafts be sent to Natalia Vera at natalia.vera@americanbar.org by October 19, 2012.

NY approves proposal to require pro bono services as pre-requisite for admission to practice

Back in May I reported 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. (See here).  The proposal generated the never ending debate on whether pro bono should ever be mandatory.  For posts on some of the reaction to the proposal go here and here. 

Today, the proposal became law. Starting in 2015, aspiring lawyers in NY will first have to complete 50 hours of free legal service in order to practice law in the state. The new rule is the first of its kind in the country.  For more on the story go the Wall Street Journal law blog, Legal Ethics Forum and PR: a contemporary approach blog all of which have even more links.

How not to practice law: hide your assets in a bankruptcy case by transferring them to a friend

The Illinois Review Board has proposed a suspension of two years of an attorney who concealed assets in a bankruptcy by transferring the assets to his friend and law partner.  The Legal Profession blog has the story here.

How not to practice law: post photos of your client's undies on Facebook and make fun of your client and his family in the process

Why is it that so many people are so stupid about how they use Facebook?  What is it about Facebook that makes some people do stupid things?  Here is a story about a lawyer who caused a mistrial, lost a client and got fired all for posting a photo on Facebook.  Here is the first paragraph of the story on the Miami Herald: 

A Miami judge declared a mistrial in a murder case Wednesday after a defense lawyer posted a photo of her client’s leopard-print underwear on Facebook.  The defendant [was] accused of stabbing his girlfriend to death in Hialeah in 2010. [The defendant's] family brought him a bag of fresh clothes to wear during trial. When Miami-Dade corrections officers lifted up the pieces for a routine inspection, [the defendant's] public defender . . .  snapped a photo of [her client’s] briefs with her cellphone, witnesses said. While on a break, the 31-year-old lawyer posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was “proper attire for trial.”

You can read the full story here and more on the story in the ABA Journal.com.  The attorney was fired immediately after the court found out about the photo.  Her supervisor, Public Defender Carlos Martinez, is quoted in the Miami Herald story explaining the decision as follows:  "Clients are entitled to lawyers’ loyalty and respect. When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it gives the appearance that he is not receiving a fair trial.”  I couldn't agree more.

ead more here: http://www.miamiherald.com/2012/09/12/2999630/lawyers-facebook-photo-causes.html#storylink=cpy#storylink=cpy

Read more here: http://www.miamiherald.com/2012/09/12/2999630/lawyers-facebook-photo-causes.html#storylink=cpy#storylink=cpy

Prosecutor in OJ Simpson case accuses defense lawyer of tampering with evidence

Almost 17 years after the verdict in the OJ Simpson case, former prosecutor in the case Christopher Darden said he believed defense attorney Johnnie Cochran, who died in 2005, tampered with the evidence.  Specifically he said he thought Cochran damaged a glove which allowed him to later use the now famous phrase "if it does not fit, you must acquit."  The allegation has generated some national attention, including a debate in the Legal Ethics Forum, which has links to articles in Reuters, the Los Angeles Times and Slate.  The ABA Journal also has a short piece (with more links) on the story here.  The debate at the Legal Ethics Forum is about whether, and at what point, would the prosecutor have the duty to report another attorney's misconduct.  If he had enough information and did not report, then he (the prosecutor) engaged in misconduct.  If he does not have enough information, then is it improper to make the claim?  Go here to see the debate.

Charges filed against West Virginia judge

Back in July I posted a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  (See here.)  After the story got some national attention, the West Virginia Supreme Court announced that no charges would be filed against the judge in the case at least in part because "the judge is embarrassed and certainly contrite about his outburst."    See here. Today, however, Professor Jonathan Turley, who has been following the story closely since the beginning, is reporting that things have changed.  The judge now faces five charges from the Judicial Investigation Commission, including some based on additional videos showing abusive treatment of other litigants.  It turns out, perhaps not surprisingly, that the conduct displayed in the video released in July was not an isolated instance.  You can read Prof. Turley's latest comment here.  The ABA Journal has more on the story here.

ABA Commission 20/20 releases proposals on foreign lawyers

The ABA Commission on Ethics 20/20 has released for comment, along with a Cover Memo from Co-Chairs Jamie S. Gorelick and Michael Traynor, revised drafts relating to inbound foreign lawyers.

The first two revised drafts describe possible amendments to ABA Model Rule 5.5 and to the ABA Model Rule for Registration of In-House Counsel. The third relates to the ABA Model Rule on Pro Hac Vice Admission.  Comments will assist the Commission in its consideration of these issues. You can e-mail your comments by October 12, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org.   

Justice Department defends problematic interpretation of prosecutors' duty in case before DC disciplinary authorities

The Blog of The Legal Times is reporting (here) on an interesting story that involves a clash between the U.S. Justice Department and the D.C. Office of Bar Counsel over a former federal prosecutor's alleged ethics transgression.  At issue is the proper interpretation of the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors."  The rule is mostly equivalent to the ABA Model Rule with one significant difference.

Both rules state that prosecutors have a duty to timely disclose to the defense "all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."  This has been interpreted to mean that the duty under the rules of professional conduct is broader than the duty imposed by substantive law.  ABA Formal Opinion 09-454 clearly explains that the duty under rule 3.8 is more extensive than the federal constitutional obligation.  In particular, Rule 3.8 is not limited to material evidence nor is it limited to information that is likely to lead to an acquittal.

The problem is that the DC version of the rule added a sentence to its comment that says that the rule  "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."

Thus, even though the actual language of both rules is the same, the extent of the duty described has been interpreted differently.  The Dept of Justice wants the DC rule to be read to impose a duty to disclose information only if the information is material.  The DoJ's brief in the case - In the Matter of Kline - is available here.  The brief of the office of Bar Counsel is available here.

This is a tough one because the DC rule's comment says what it says and it is pretty clear.  You can make the argument that it is pretty clear the drafters of the rule wanted it to be interpreted differently than the drafters of the ABA model rules.  The problem is that that would be a bad interpretation.  I happen to agree with the ABA's view on this.  The ethical duty should be broader; it should not be limited by materiality.  Yet, it seems the authorities in DC thought otherwise when they drafted their version of the rules.  It will be interesting to see how this issue is resolved.  I hope DC decides to amend the comment and join the ABA in its approach to the prosecutor's duty.

For more on the story, go to the Blog of the Legal Times which has more details and links to relevant documents in the case.

How not to practice law: get drunk, drive, crash your car into a pole then try to bribe a police officer with a personal check with your name on it

Here is another story worthy of our continuing series on bizarre, dumb or unbelievable conduct deserving of sanctions.  In this particular case, the attorney testified that on the date of the incident, he got drunk during lunch and later drove his car into a telephone pole.  He was handcuffed, placed in the back of a police vehicle, and taken to a police station where he allegedly attempted to bribe a police officer with a personal check.  The panel that considered the case noted that "an attorney who would offer to bribe a police officer by means of a personal check would have to have had his judgment impaired by something." The case is called In the Matter of Unni Krishnan and the opinion is available here.

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

You always risk disbarment

One of the first important lessons I always try to get my students to learn is that given the fact that the rules don't provide for sanctions, and the fact that there is so much inconsistency when it comes to sanctions, no matter what the conduct is "you always risk disbarment."  To illustrate this, I assign In re Lamberis, 443 N.E.2d 549 (Ill. 1982), in which the hearing board, the review board, the administrator of the disciplinary system, the majority opinion of the Supreme Court and a couple of dissenting judges all proposed different sanctions for the conduct, which wasn't even in the context of the practice of law.  (The suggested sanctions were censure, suspension for 3 months, suspension for 6 months and disbarment). 

In any case, here is a new case that can also be used to remind everyone that you always risk disbarment.  The Legal Profession blog is reporting that the Maryland Court of Appeals has disbarred an attorney who withdrew an amount of money from his attorney trust account resulting in an overdraft of $5.24.

Is it really worth it to risk disbarment for $5 and change...?  I don't think so.  

How not to practice law: do everything wrong when leaving your firm

Here is a new installment in our running list on how not to practice law:  the Florida Supreme Court has suspended  two attorneys for misconduct in connection with their departure as employees of a law firm.  In the process of preparing to leave the firm, the attorneys solicited firm clients, made misrepresentations to the firm and clients, copied files without authorization and more.  The court found the use of the files amounted to criminal theft, dishonesty and conduct prejudicial to the administration of justice. The case is called Florida Bar v. William Henry Winters.

Judge rejects government's request to change rules on attorney/client communications at Guantanamo

A few days ago I reported that the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees. The new restrictions would require in some cases that a lawyer sign a "memorandum of understanding" to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer.  My original post, which has links to the memorandum and other sources, is available here.

Yesterday, however, in what has been called "a strong rebuke against the government," the judge in the case refused to change the rules that have long governed communication and meetings between Guantanamo Bay detainees and their lawyers.  The judge's opinion is available here.  He agreed with the detainees' counsel, calling the government's effort to modify existing rules an "illegitimate exercise of Executive power."

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

UPDATE 1:22 p.m.: For more go to the Jurist, The New York Times and How Appealing, which has links to eigth different articles on this. 

Last chance to nominate your favorite blogs for the ABA's list of the best legal blogs of the year

Today is the last day to nominate your favorite blogs for the ABA Journal 's annual 100 best legal blogs list ("Blawg 100"). If you have enjoyed reading my blog, please consider voting for it by going here.

Article on how disasters sometimes bring out the worst in lawyers

Richard Zitrin, professor of legal ethics at UC Hastings, has published an article describing how sometimes disastrous accidents make the legal profession look bad.  According to the old saying, when a disaster strikes the first two organized groups to show up are the press and the lawyers.  This proved to be true last month, when within two days of the Aug. 6 Chevron refinery fire that inundated Richmond with clouds of black smoke, a swarm of lawyers and their representatives descended on the city streets.

The problem is that while some of those lawyers were acting unethically, others were not and the authorities enforcing the law did not seem to understand the difference.   In the end, it is the profession in general that ends up looking bad.  Go here to read the full article. 

Illinois Supreme Court rules attorney can't serve as attorney and guardian at litem in delinquency proceedings at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it. I stated that the way courts justified the practice "displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible."  Later I wrote a law review article on the subject (available here) in which I made a long argument in support of my position.

The Court did not grant the appeal in the case I wrote about in 2010, but some time later, it did grant the appeal in another case - In Re Austin M. - which raised the same issue.

I was glad the Court would be addressing the question, but I was not too optimistic about the possible result.  I thought the Court would continue to repeat the erroneous analysis that courts in Illinois had followed for many years.

Today I am very happy to report that the Illinois Supreme Court just released its decision in In Re Austin M. holding that an attorney may not assume the roles of advocate for a minor and guardian at litem simultaneously, finding that such “hybrid representation” constitutes a per se conflict of interest.  That is definitely the correct decision!

The opinion is available here.  For more on the case go to the Juvenile Law Center blog and here.

The opinion is long, but here are some of the most important passages:

    Austin’s initial claim on appeal is that the legal representation he received at his delinquency trial amounted to a denial of his right to counsel . . .  More specifically, Austin contends that, as a minor tried for a criminal offense in a delinquency proceeding, he had the right to a defense attorney, that is, an attorney who gives his client his undivided loyalty, who zealously safeguards his client’s rights and confidences, and who acts in accordance with his client’s wishes. Austin asserts that he was deprived of this type of counsel because his attorney. . . performed less as a defense attorney and more as a guardian ad litem (GAL).

    Austin contends that a GAL, unlike a defense attorney, owes a duty to the court and to society and may disregard a minor client’s wishes if the GAL believes it is in the minor’s best interests. . . . Further, Austin contends that his attorney’s “hybrid representation” deprived him of his statutory and constitutional right to counsel and constitutes a per se conflict of interest requiring reversal of his adjudication.

    The State asks us to reject this claim. . . . The State also maintains that even if Austin’s attorney did, in fact, function as both counsel and GAL at Austin’s delinquency trial, it is of no moment because this type of dual representation does not constitute a per se conflict of interest. According to the State, for hybrid representation to be reversible error, there must be evidence of an actual conflict of interest resulting from the hybrid representation.  Further, the State argues that nothing in the record indicates that Austin’s attorney’s performance was compromised in any way due to an actual conflict of interest. . . .

    Austin’s claim requires us to decide . . . whether “hybrid representation” is inconsistent with the statutorily and constitutionally guaranteed right to counsel afforded minors in delinquency proceedings . . .

   . . . .
   
    . . . [A] minor in a delinquency proceeding has a non-waivable right to be represented by a defense attorney. There is no statutory exception which would permit representation by a GAL—even one who is also an attorney at law.

    Minors in delinquency proceedings also have a constitutional right to counsel. . . .

    . . . .

    It is clear to us that a juvenile’s right to counsel in a delinquency proceeding is firmly anchored in both due process and our statutory scheme. . . .

    Given the above, the type of “counsel” which due process and our Juvenile Court Act require to be afforded juveniles in delinquency proceedings is that of defense counsel, that is, counsel which can only be provided by an attorney whose singular loyalty is to the defense of the juvenile. . . .

    . . . .

    In a delinquency proceeding, when counsel attempts to perform the role of GAL as well as defense attorney, the risk that counsel will render ineffective assistance or that an actual conflict of interest will arise is substantial. . . .

    . . . [W]hen a guardian ad litem is appointed in a delinquency case, it is generally because there is no interested parent or legal guardian to represent the child’s best interests. In these situations, the GAL must act in the role of a concerned parent, which is often in opposition to the position of defense counsel. . . .Further, a GAL—unlike a defense attorney—owes a duty to the court and to society. A guardian ad litem need not zealously pursue acquittal if he does not believe acquittal would be in the best interests of the minor or society.

    When counsel attempts to fulfill the role of GAL as well as defense counsel, the risk that the minor’s constitutional and statutory right to counsel will be diluted, if not denied altogether, is too great. . . . We conclude, therefore, that the interests of justice are best served by finding a per se conflict when minor’s counsel in a delinquency proceeding simultaneously functions as both defense counsel and guardian ad litem.

UPDATE:  I later wrote a law review article reviewing the opinion.  It is available here.

Comment on the split among courts on what happens when attorneys can't afford to pay sanctions

Here is a link to a short article on the fact that federal appellate courts are split over whether money sanctions issued against an attorney can be reduced when he cannot afford to pay.

Is it unprofessional not to carry malpractice insurance?

Some states do not require lawyers to have malpractice insurance.  Do you think it is unprofessional to opt not to get insurance?  Here is a short comment that makes a good argument that it is improper (in terms of professionalism) not to carry insurance.

Reminder: Aspiring Lawyers Should Not Engage in Terrorism

Reminder: Aspiring Lawyers Should Not Engage in Terrorism. Lowering the Bar explains here.

Supreme Court hints it may expand recent ruling on ineffective assistance of counsel

Lyle Denniston of the SCotUS blog is reporting that last Wednesday the Supreme Court "strongly hinted that one of last Term’s key rulings on the duties of criminal defense lawyers may get a prompt new look next Term, to see if it applies to death-penalty cases in Texas."  In a brief order, the Court put on hold an execution in Texas in a case that appears to be a major test of the impact of the Court’s 7-2 ruling last March in Martinez v. Ryan.  Go here for the full article (with links to the cases).

In Martinez, the Court created an exception to prior rulings that had strictly limited a convicted individual’s right to complain that a defense lawyer had not performed effectively at the trial holding that if a state did not allow an individual to raise that kind of claim until after the conviction has become final, a federal court can still decide the claim.  The new case will test whether and how Martinez applies to capital cases.

Covington & Burling sued for allegedly violating the "hot potato doctrine"

A former client of Covington & Burling (3M Corp.) has filed a complaint against the firm arguing that the law firm violated its duties to the client when it allegedly dropped the client in one matter to accept representation of another client (the state of Minnesota) against 3M.  The client is claiming a violation of what is sometimes referred to as the "hot potato doctrine" which considers it a violation of fiduciary duties when a lawyer abandons a client with the express purpose to claim the client is a "former" client which would allow the lawyer to take on a certain representation the lawyer would have been unable to undertake if the client had still been a "current" client.  You can read the complaint here.

Covington has asserted, on the other hand, that it agreed to represent the state of Minnesota in its litigation against 3M after confirming that the firm had no active matters for 3M and that there was no conflict based on any prior representation of 3M.  Covington has also stated that 3M signed a waiver in which it specifically agreed that Covington could sue 3M in the future on unrelated matters.

Evidently, 3M is now saying that Covington was representing 3M in active matters - although unrelated - at the time Covington agreed to represent Minnesota against 3M.  Covington is saying it was not representing 3M at the time.  So this is a matter of fact that will need to be determined.  In other words, the court will have to determine if Covington was in fact representing 3M in any active matters at the time. Also, the court will have to examine the waiver signed by 3M and determine it is is valid and whether it applies to the facts of the case. 

Assuming the waiver is not dispositive, if it is true that the chronology of events was what 3M claims it to be (that the law firm was representing 3M in an active matter, then the state asked the law firm to take on a new case against 3M, then the law firm dropped 3M, then the law firm took on the representation of the state and sued 3M...), I have to say that sounds a lot like a hot potato case to me, but it will depend on the chronology of events.  If, as Covington argues it had completed the representation of 3M long before it agreed to represent the state of Minnesota, there is no basis for 3M's claim.

Another thing that is interesting here is that the hot potato doctrine is usually used in support of a motion to disqualify a firm in an ongoing case.  Here, 3M tried to get Covington disqualified in the case it filed on behalf of the state of Minnesota seventeen months after that case had started.  That long delay in filing the motion is problematic but the motion has not been decided. Obviously, it will be interesting to see what happens with that motion.   (After the motion was argued, 3M filed a motion to recuse the judge and apparently the case is now before a different judge).  But whatever the case may be, the interesting thing I was referring to is that in this instance 3M has filed a claim for damages, asking for compensatory damages and for a refund of fees paid to the firm over a period of years.
 
Covington & Burling has filed a motion to dismiss the case, in which the firm alleges that the lawsuit filed by 3M is an effort by 3M to deprive the State of Minnesota of its chosen counsel, and to obstruct the litigation of the underlying case.  However, the motion does not address the merits of the claim raised by 3M. It is based on an argument of lack of jurisdiction.  As to the merits of the claim Covington simply states that "[t]he claims against Covington are completely without merit, which Covington will demonstrate at the appropriate time."

For more information and other links on the case go to the ABA Journal and Professor Jonathan Turley's blog.  Also, here is an older article on the case from Reuters which has a lot more information and links (including a link to the waiver mentioned above). 

ABA Journal's Annual Blawg 100 - Vote Today!

The ABA Journal is now accepting nominations for its 100 best legal blogs ("Blawg 100") list. If you've enjoyed reading my blog, please consider voting for it here by September 7.

Nominate your favorite Legal Ethics article for Zacharias Prize

Submissions and nominations of articles are now being accepted for the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. The committee will select from among articles in the field of Professional Responsibility with a publication date of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu

The deadline for submissions and nominations is September 1, 2012.

Thanks to the Legal Profession blog for the information.

Court considers changes to rules regarding representation of detainees at Guantanamo -- UPDATED

Last Friday, the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. Reportedly, lawyers for detainees argued they are concerned that the federal government is moving to "hamstring" the rights of detainees at the Guantanamo Bay detention center.  According the reports, Chief Judge Royce Lamberth expressed skepticism about the new restrictions, which in some cases require a lawyer to sign a "memorandum of understanding" (MOU) to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. A copy of the MOU is available here.  For more (and more links) on this story go the the Jurist and the Blog of the Legal Times.

UPDATE (8/20):  There is another article on the subject in the SCotUS blog.

Do prosecutors have too much power?

Prosecutorial discretion is an important part of the criminal justice system.  For the system to work, prosecutors must have some level of discretion on how to do their jobs.  But, all power can be abused, and, as the old saying goes, with power comes responsibility.  I have discussed the debate over whether suggesting or agreeing to untraditional punishment is a valid use of discretion or abuse of power. (See here and here, for example).

The issue is now back in the news.  Using a recent case in which a U.S. district judge in Denver rejected a plea bargain because the defendant had agreed to waive his right to appeal, The New York Times has published a debate on whether the judge’s concern "is a sign that plea bargains have gotten out of control and in the process given prosecutors too much power" and asking "[w]hen one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?"  Go here to read the five short opinion pieces on the issue written by former prosecutors, judges and academics.

More on the controversy over Stephen Glass' request for admission to the bar - UPDATED

Almost a year ago I wrote about the controversy over the request for admission to the bar by Stephen Glass, a former journalist who was exposed for having falsified many of the stories he wrote for important national magazines over the years - including some he wrote while attending law school.  See my original comment on the case here.  The case is now before the California Supreme Court.

For an argument in favor of admission go here. For arguments against admission go here and here.

The Washington Post has more on the story here.  Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case.  The article was later turned into a film of the same name.

Ex-Judges, Prosecutors Join Fight Over Prosecutorial Misconduct

The Blog of the Legal Times is reporting that more than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct taking a position in the case against the Justice Department.  The Wall Street Journal law blog has more information here.

The case presents an interesting question:  does a prosecutor act unethically (or illegally) if he or she charges a defendant with a crime out of vindictiveness, malice or spite, but under circumstances that can support an argument of probable cause for the charge. The U.S. Court of Appeals for the 11th Circuit ruled last August that prosecutors can’t be sanctioned for “subjective ill-will,” if they have an objectively reasonable basis for bringing charges.

Can Prosecutors Use a Defendant's Pre-Arrest Silence as Evidence of Guilt?

Can prosecutors use a defendant's pre-arrest silence as evidence of guilt?  Circuit courts are split on this issue as explained in this post in the blog Circuit Splits.   

LA Times article on whether undocumented immigrant should be allowed to practice law

A few days ago I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (see here).  Here is the latest - in the Los Angeles Times.

One more link to the new amendments to Model Rules

Here is a link to a "red-line" version of all the amended ABA Model Rules.

Text of the recently approved amendments to the Model Rules

Here are links to the text of the approved amendments:

Rule 1.6

Rules 1.18 and 7.3, and 7.1, 7.2 and 5.5

Rules 1.1, 5.3 and 5.5

Rule on Practice Pending Admission and Comment to Rule 5.5

Rule for Admission by Motion

Rule 1.6 and Rule 1.17

Comment paragraph [3] to rule 4.4 was also amended as follows:

[3] Some lawyers may choose to return a document or DELETE electronically stored information unread, for example, when the lawyer learns before receiving it the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or DELETE electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.


Thanks to Andrew Perlman for the links.

Illinois appellate court finds failure to communicate plea offer supports claim of ineffective assistance of counsel

A couple of months ago, the Illinois appellate court found that an attorney's failure to communicate a plea offer can be the basis of a claim of ineffective assistance of counsel.  Seems obvious to me.  The case is called People v Trujillo and it is available here.

ABA approves changes to the Model Rules

Professor Andrew Perlman, Chief Reporter of the ABA Commission on Ethics 20/20, is reporting (at the Legal Ethics Forum) that this afternoon the ABA House of Delegates approved numerous changes to the Model Rules of Professional Conduct and related ABA policies, adopting all six resolutions proposed by the Commission.  A brief two page summary of the changes can be found here, and you can find the specific amendments that the ABA adopted along with the accompanying reports here.  (Resolutions 105A and 105F in the preceding link underwent minor changes after they were posted.  Clean versions of those Resolutions should be available within the next few days.) 

Professor Perlman is also reporting that the six resolutions adopted today reflect the bulk of the Commission's proposals, though the Commission will continue to study several remaining issues before the Commission completes its work in February 2013.  Those issues relate to virtual law practice, choice of law problems associated with conflicts of interest and nonlawyer ownership, and domestic practice authority for inbound foreign lawyers.  (The Commission's continued consideration of the choice of law problems associated with nonlawyer ownership was the subject of a remarkably spirited debate today in the ABA House of Delegates.)

Debate continues as to whether undocumented immigrant should be allowed to practice law; Dept. of Justice says no

Back in May (and later in June), I posted links to the debate in California as to whether an illegal immigrant should be allowed to practice law (see here and here.)  After the State Bar of California argued that an illegal immigrant should be eligible to practice law, the court asked the Obama administration to submit written arguments n the issue.  The Department of Justice has now complied taking the position that illegal immigrants should not be allowed to practice law.  For more information on the story go to the JURIST, the Legal Ethics Forum, The Wall Street Journal law blog, the Mercury News, the San Francisco Chronicle and Reuters. 

Illinois State Bar Association supports ban on non-lawyer ownership of firms

The Illinois State Bar Association Board of Governors has passed a resolution reaffirming the ABA policy – adopted in 2000 – that law firms should not be owned by non-lawyers and that legal fees should not be shared with non-lawyers. Proposals that would change this policy have been circulated in connection with the work of the ABA’s Commission on Ethics 20/20.  Go here for more on the story.

Court finds state violated attorney's constitutional rights

In an important opinion on first amendment rights of lawyers, the United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  The case is called Berry v. Schmitt and it is available here.

The case is important because it discusses the fine line between the authority of the state to regulate attorney speech and the individual attorney's right to express his opinion about judges and the court system.  For a number of reasons, attorneys have less freedom of speech than other professionals - there are rules that limit what can be said about on going cases for example - but just as there is a limit to what attorney's can say, there has to be a limit to the power of the state to regulate speech.

For a good discussion of the ruling in Berry go here, here and here.

Podcast on the proposals to amend the ABA Model Rules

Here is a podcast of a program discussing the proposals to amend the Model Rules.

Another story on sanctions for conduct outside the practice of law: attorney disbarred for lying to get financial aid for daughter

Earlier today I posted a story to remind everyone of one of the first lessons I want my students to learn: that  disciplinary authorities can, and often do, discipline attorneys for conduct outside the practice of law.  Here is another one in which the lawyer gets the highest sanction.

This story is actually an update on a story I wrote about back in September of 2011.  Back then, an Illinois Hearing Board recommended disbarment for an attorney who 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 that opinion here.

Now comes the update:   the Illinois Review Board has affirmed and agreed with the recommendation of disbarment.  The case is called In the Matter of Golden and the most recent opinion can be found  here.

Minnesota Supreme Court holds defendant is entitled to due process in the process of waiving right to counsel

This would seem to be obvious but here is a new case from the Minnesota Supreme Court holding that a defendant is entitled to (and in this particular case was denied) appropriate due process protections in the process of waiving the right to counsel.  The case is called Minnesota v. Krause.  For more on the story go to the Legal Profession blog.

Sanctions for conduct outside the practice of law

There is nothing particularly new in this story, but I like to remind readers from time to time that a lawyer can be sanctioned for conduct outside the practice of law.  In this new case, a lawyer in Illinois was sanctioned because he got into a fight with another person over the fact that the other person hit the lawyer's house with a golf ball.  The lawyer's property is alongside a golf course and apparently he got angry when a golfer hit a ball that bounced off the house and into his yard.  I play golf and I have to tell you that this happens all the time (balls going into people's properties, not the fighting over it).  Anyone who buys a house along a golf course assumes this risk, which is why even though I play golf I would never buy a house on a golf course.  For more on the story go to the Legal Profession blog.

Sixth Circuit enters circuit split on ineffective assitance of counsel

Last week the Sixth Circuit joined a circuit split over whether an attorney's failure to file a notice of appeal despite receiving explicit instruction to do so from their client constitutes ineffective assistance of counsel. The case, Campbell v. United States, is available here.  For more on the story go to Circuit Splits.

Who should be in charge of disciplining Department of Justice lawyers?

I have criticized the Department of Justice's actions to discipline its attorneys as a joke (here and here).  And, as I said in one of those comments, I am not alone in my criticism.  Here is a story in the blog Main Justice about the new group within the Department of Justice-- the Professional Misconduct Review Unit -- that determines disciplinary sanctions within the of Department of Justice.

Thanks to the Legal Ethics Forum for the link to this story:

Alabama State Disciplinary Commission rules attorneys can't participate in Groupon and other similar services

Contrary to opinions from several other state bars that have addressed this subject, the Alabama State Disciplinary Commission has issued an opinion concluding that a lawyer's use of websites like Groupon to sell legal services violates the ethics rule against sharing legal fees with nonlawyers, as well as the ethics rule requiring all unearned fees to be placed into a trust account and may violate rules on conflicts of interest, competence, diligence, and communication, the commission warned.  The opinion (no. RO 2012-01) is available here.

ABA seeks comments on draft re proposed changes to Model Rule 1.7 (Conflicts of interest)

The ABA Commission on Ethics 20/20 has released a Revised Draft Proposal on Model Rule 1.7: Choice of Rule Agreements for Conflicts of Interest.  Also, go here for the Cover Memo.  Please e-mail your comments by August 15, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org. 

Choice of Laws and Concurrent Conflicts

Assume a firm is asked to represent a client in a jurisdiction against another current client of the firm.  Then assume that this would be allowed under the rules of that jurisdiction but not under the rules of the jurisdiction where the other current client is represented.  Which rules govern?  Should the rules allow a firm to represent an interest adverse to a current client in a different jurisdiction absent client consent?

Here is a comment posted in the Legal Ethics Forum on this question:

The New York office of Law Firm represents Company A on a transactional matter involving parties and commitments in New York and London.  While that matter is pending, Company B (in London) wants to retain a lawyer in the London office of Law Firm to handle a London-based arbitration against Company A.  Assume the arbitration is completely unrelated to the work that the New York office of Law Firm is handling for Company A.

Now consider that the ethics rules in England permit law firms to be adverse to existing clients in unrelated matters.  In other words, under the Rules applicable in England, Law Firm would have no conflict of interest if it represents Company B in the arbitration.  In contrast, the Model Rules (and the New York Rules) do not permit lawyers to be adverse to current clients in unrelated matters.  Thus, Law Firm would have a conflict under the New York Rules.  So does Law Firm have a conflict of interest if it represents Company B?

A review of Rule 8.5 (Choice of Law) yields no clear answer.  For matters pending before a tribunal, Rule 8.5 instructs us to apply the rules of the jurisdiction where the tribunal sits (for the arbitration, that would be England).  But on the other hand, Rule 8.5 strongly implies that the New York Rules should govern the Law Firm's representation of Client A in the transational matter.

The ABA Commission on Ethics 20/20 has just circulated a new draft of a possible proposed amendment to Rule 1.7 that would help to address this choice of law problem.  It would allow, subject to several limitations, lawyers and clients to agree that their relationship will be governed by a particular jurisdiction’s rules of professional conduct relating to conflicts of interest.  For example, given that Law Firm's representation of Company A has a nexus to England, Company A and Law Firm could agree at the outset of the engagement that any future conflicts will be resolved under the Rules in England.  This agreement would be a kind of advance waiver similar to what is already permitted under Rule 1.7, Comment [22].  The idea is that such agreements could address the issue more clearly than is possible under Rule 8.5.

The Commission's draft proposal and report on this topic can be found here.  The cover memo is here. Comments should be submitted to Natalia.vera@americanbar.org by August 15th.  If the Commission decides to pursue this proposal, it would be presented to the ABA House of Delegates in February 2013.

ABA Commission asks for comments on Rule 5.5

The ABA Commission on Ethics 20/20 recently released a paper that asks whether Model Rule 5.5 should be revised to offer more guidance on the question of whether a lawyer may provide legal services on a temporary basis in this jurisdiction where the lawyer is not admitted.  For a discussion of the issues go to the Legal Ethics Forum and to My Shingle.com here. and here.

More reports on the slow death of the billable hour (which continue to be exaggerated)

I have reported before on the claims that the billable hour is dead or dying, always adding my opinion that reports of this death have been greatly exaggerated.  For my previous coverage on this subject see here, here, here and here.  You can also use the search function on the right side panel to look for posts on "flat fees" which discuss how the confusion on how to regulate the use of flat fees in some jurisdictions has eliminated their usefulness as alternatives to hourly fees.

Many of the sources of information cited in those older links come from the Wall Street Journal, which is why interestingly, today the WSJ law blog is finally accepting my view in a short article (available here) in which it states that "[d]espite all the hoopla about hourly billing going the way of the Edsel, law firms and their corporate clients have been much slower to adopt alternative billing arrangements than many had predicted..."

West Virginia decides not to file charges against judge for outburst

Yesterday I posted a note about the video showing a judge losing his temper in court (here) and a link to an article highly critical of the judge.  Today, Prof. Jonathan Turley is reporting that the West Virginia Supreme Court has announced that no charges will be filed against the judge in the case at least in part because "the judge is embarrassed and certainly contrite about his outburst."  Prof. Turley then argues that this "leaves some confusion over what it would take to get a charge out of the high court."  He also argues that "I have no doubt that [the judge] is embarrassed after becoming an Internet sensation. However, the video reveals conduct that is shocking and raises serious questions about Watkins’ suitability as a judge."  You can read Prof. Turley's latest comment on the case here.  The ABA Journal has more on the story here.

Video: How not to conduct a hearing

Yesterday, the ABA Journal posted a copy of a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  The judge was complete out of control because, according to him, the husband in the case had posted a story about the judge (which included a photo of the judge's house) on a website.  Since the hearing, the husband has filed a complaint against the judge before the Judicial Investigation Commission.  It will be interesting to see what is decided.

Assuming the accusation made by the judge is true, I think he had reason to be upset, but that does not excuse his behavior.

Professor Jonathan Turley has published a short comment on the story here in which he concludes that "[t]he ethics charge has obvious merit given the judge’s personal interest and anger — not to mention his loss of composure and demeanor. Regardless of the merits of the allegations, [the judge] was no longer a disinterested or neutral party."  You should read the readers' comments too.
 

How not to practice law: if you are a judge, go ahead and preside over a criminal hearing in a case in which you are the victim

Once again let's add another incredible but true story to our long list of things you should NOT do if you want to continue to practice law.  As usual, this list involves conduct that is so basic you'd think anyone would know what they are doing is improper.  Nothing complicated here.  It would be funny, if it weren't so serious.... 

So here is today's entry:  a judge is the victim of a crime and then finds himself presiding over the hearing to set bond for the person accused of that crime.  Apparently it did not occur to the judge that it would be a good idea to let a different judge take over... 

Interestingly, the judge just got a reprimand, maybe because, after all, he allowed the defendant to be released without bond. The actual letter of reprimand is available here. The Legal Profession blog has more here.

Oregon Supreme Court imposes discipline but refuses to explain why

Here is a link to a strange opinion by the Oregon Supreme Court in which the Court imposes an 18 month suspension.  What makes the opinion strange in my view is the fact that the Court explicitly refuses to explain its reasoning.  It simply says that  "We . . . conclude that an 18-month suspension is the appropriate sanction. An explanation of the extensive facts related to the four matters underlying this proceeding and of the appropriateness of the sanction would not benefit the bench, bar, or public."

I don't know but it seems to me that a little guidance so that other lawyers can learn from this one's mistakes and misconduct wouldn't hurt....

The case is called In re Goff and it is available here.

Thanks to the Legal Profession blog for the link.