Does a lawyer violate a state imposed suspension order if he continues to practice in federal court?

Does a lawyer suspended from practice by a state Supreme Court engage in unauthorized practice of law if he continues to represent clients in federal court (within the same state and on matters that involve state law) during the suspension period?

That is the issue presented by a case working its way to the Louisiana Supreme Court. There, the attorney was prohibited by an Order of the Louisiana Supreme Court from practicing in the state of Louisiana, but he was still licensed in the federal court system. The situation was brought to the attention of the federal judges in the Eastern District of Louisiana but they declined to suspend the attorney in the federal court. In other words, the attorney was permitted by the federal court system to continue to practice law in the Eastern District of Louisiana although his Louisiana law license had been suspended by order of the Louisiana Supreme Court.

Once the lawyer served his suspension, he requested reinstatement. The hearing committee decided that the attorney did not violate the terms of the suspension order by continuing to represent Louisiana residents in federal courts and recommended reinstatement.

The Disciplinary Board split 4-4, thus adopting the decision of the hearing committee. The matter is now before the Supreme Court.

One of the dissenting opinions at the Board level concluded that the lawyer’s continued practice in the federal court system was “nothing less than an affront to the authority of the Louisiana Supreme Court and the role the Court plays in ensuring that the public is adequately protected from lawyers who fail to adhere to the appropriate standards of professional conduct.” Another one suggested that by maintaining a law office and by holding himself to the citizens of the state as a lawyer competent to exercise legal judgment and to counsel them on matters of state law, the lawyer violated the suspension order.

This is an interesting question. Obviously, the state Supreme Court has no authority over the lawyer’s practice in federal court. If he was allowed to practice there – particularly after being informed of the state suspension – then he had a perfect right to continue to do so. The fact that may make a difference, though, is that the attorney was not representing clients in matters that were exclusively federal. The attorney was practicing state law, so to speak, in federal court. The issue is whether the authority to suspend an attorney from practice is geographical, jurisdictional or even topical.

It will be interesting to see what the state Supreme Court decides.

The case is In Re Joseph Bruno and the decision of the Disciplinary Board and the dissenting opinions are available here.

Thanks to the Legal Profession Blog for the link.

Even more on lawyers using social media

Here is a short comment on Legal Ethics Forum on lawyers and social media. It discusses five basic rules to keep in mind:

(1) make sure you don't disclose confidential information

(2) be careful when interacting with third parties

(3) don't lie

(4) don't try your case on the 'net/press

(5) don't criticize the court.

For previous posts on issues related to social media, go here, here and here.

How not to practice law: when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

The Illinois Adminstrator has filed a disciplinary complaint alleging three counts of misconduct against an attorney, one of which relates to a "want-ad" for a secretary. Keep reading. You wouldn't believe me if I told you the story, so I am just going to quote this in full.....

"On May 28, 2009, Respondent logged onto the Internet at his law office . . . through AT&T Internet Services, the Internet provider of the attorney who had an office in the same suite and building and from whom Respondent was then renting an office. At approximately 1:25 p.m. Respondent accessed the website, "Craigslist.org," ("Craigslist") and posted an ad in the "Adult Gigs" section of the classified advertisements of Craigslist. The title of the post was "Loop lawyers hiring secretary/legal assistant." The post read as follows:

Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you.

. . . On or about May 28, 2009, at 10:26 p.m., [an applicant] sent Respondent an e-mail response to Respondent’s posting. . . .Respondent responded by e-mail to [her] e-mail. Respondent’s response read as follows:

. . . Thank you for your interest in the job. I just wanted to give you some more info about the job and see if you are still interested in interviewing. Our law firm is a boutique firm, concentrating solely in immigration law. . . . You would be working with the two partners of the firm. Your duties will include the general secretarial work and legal work. The legal work will include filling out visa applications, etc.

. . . you would [also] be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us. If you think you’re comfortable so far, please let me know and we can proceed with the process. The next step is to set up an interview. . . . .

Lastly, we’ve actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you’re comfortable with that aspect, because I don’t want you to do anything that you’re not comfortable with. So since that time, we’ve decided that as part of the interview process you’ll be required to perform for us sexually (i didn’t do this before with the other girls i hired, now i think i have to because they couldn’t handle it). Because that aspect is an integral part of the job, I think it’s necessary to see if you can do that, because it’ll predict future behavior of you being able to handle it when you have the job.

If you’re still okay with everything, let me know what you’re availability is and we can figure out a time for you to come in and interview. Let me know. Thanks for your interest.

. . . [The applicant] was frightened by Respondent’s response and did not reply to Respondent’s e-mail. On or about June 1, 2009, [the applicant] sent a request for investigation to the Administrator of the Illinois Attorney Registration and Disciplinary Commission . . . As a result of [her] request, on June 3, 2009, the Administrator docketed an investigation... [and contacted the lawyer]. . . . In his response to counsel for the Administrator, Respondent stated as follows:

…It appears that somebody with malice [sic] intentions has used my business information to post the advertisement on Craigslist. I did not post the advertisement for a legal secretary…

Respondent’s statement that he did not post the advertisement on Craigslist...was false, and Respondent knew it was false when he made it, because Respondent did in fact post the advertisement on Craigslist and knew when he responded to the ARDC investigation that he had in fact posted the advertisement. . . .

On September 22, 2009, Respondent appeared for a sworn statement at the Chicago office of the Attorney Registration and Disciplinary Commission. At that time, Respondent was sworn upon his oath. In his statement, Respondent acknowledged that he posted the May 28, 2009 Craigslist advertisement and sent the May 29, 2009 responsive e-mail to [the applicant]..."

So, there you have it. I don't even know what to say!

Thanks to the Legal Profession Blog for the information.

UPDATE (July 2011):   This case has been finally decided and the attorney was imposed a one year suspension.  Go here for the story.

UPDATE (Dec 1, 2011):  The Illinois Supreme Court approved the sanction in this case.  For comments and reactions go here and here

More on lawyers using social media

Yesterday I posted a link to an article suggesting lawyers should re-think the idea of using social media. For the counter-argument, here is a link to an article called "5 Reasons for Lawyers to Use Social Media" (available here).

For an article with some examples of the wrong uses of social media go here. The examples include the following:

--Prolific blogging when claiming an overuse injury due to excessive use of a keyboard at work.

--Texting between attorney and client under the table during a deposition which, upon revelation, leads to discovery of all those text messages.

--Judge twittering from the bench, which led to judge's resignation.

--Twittering juror led to motion for new trial. Judge in that case denied the motion, but another judge granted it.

--Lawyer asking for continuance due to death in family, while his Facebook page showed him at a party when he was supposed to be at the funeral.

--Facebook "friending" between attorney and judge hearing case led to impermissible ex parte communication, a problem for lawyer and judge alike.

--Lawyer on jury duty, without disclosing he was a lawyer, blogging about the trial. This led to new trial for defendant and bar suspension for the lawyer.

--Defendant doctor blogging about progress of his malpractice trial, including unflattering comments about jurors. Plaintiff found the blog and used it on cross examination. The case settled quickly after that.

Prof. Monroe Freedman on pre trial publicity

Here is a link to a short comment by Professor Monroe Freedman on the debate regarding pre trial publicity over the former Governor Blagojevich's trial. More on the story here.

Debate as to in-house counsel duties during internal investigation

Here is a link to an interesting debate as to the duties of an in-house counsel during an internal investigation based on this hypo:

Imagine that in-house counsel is conducting an internal investigation and speaks with an employee whose conduct may have been unlawful. The employee does not have her own counsel, so the in-house lawyer makes clear to the employee that the lawyer represents the company and not the employee herself. The employee is reluctant to speak with the lawyer and the lawyer then says to the employee, "You are subject to the company's employment policies, which require you to speak with me about this matter." Is the lawyer's conduct a violation of the rules?

Social media and marketing of legal services

Here is a comment on using social media (facebook, twitter, etc) as a way to market legal services and as to why maybe you should consider not doing it.

More on the 5th Circuit pending case on conflicts

Here is a link to the Legal Ethics Forum's post and comments on the upcoming 5th Circuit decision about imputed conflicts. Again, as the post states, there is only one way to go here. If the Court decides the presumption is irrebutable the result will be terrible.

Court of Appeals for the 5th Circuit to decide important case regarding imputation of conflicts

According to the approach of the ABA Model Rules, when a lawyer joins a new firm there is a presumption that the lawyer comes to the new firm with knowledge of confidential information related to the cases handled by the lawyer's former firm. This presumption, however, is rebuttable.

However, Law.com is reporting today that the Court of Appeals for the 5th circuit has a case before it in which the issue is precisely whether that presumption should be irrebutable.

A finding that the presumption is irrebutable would be terrible in many ways. For individual lawyers, it would make it terribly difficult to find a new job because firms will not be willing to open their doors to lawyers who would then force the firms to give up current clients because of the conflicts the new lawyer's presence in the firm would create. For firms, it would mean that they would be subject to being disqualified just because a new lawyer in the firm is thought to have confidential information about a former client even if, in fact, the lawyer could show he or she did not.

Go here for the full story.

How not to practice law: try to recover expenses from your client after you agreed not to do it

Here is another addition to our on going series on "how not to practice law": don't know the terms of your own fee agreement!

It relates to something we covered in class the other day. As you probably remember, the Rules in most jurisdictions state that attorneys can advance court costs and expenses of litigation. Having paid for these expenses, the attorney has a right to recover these expenses, but the recovery of those advances is typically contingent on the result of the litigation. This is so, to avoid the unpleasant situation of having a lawyer going after a client to recover money after the client just lost a case.

Interestingly, Law.com reported last week that a Manhattan judge has taken to task some well-known personal injury attorneys for what she called a "nonsensical and frivolous" bid to recoup the costs of an unsuccessful medical malpractice action. According to the story, the judge began her ruling stating that the conduct of the lawyers illustrates why members of the public hold cynical views of the legal profession. The Judge concluded that the firm's retainer agreement made recovery of the expenses contingent on the recovery on the case and since there was no recovery in the case, the claim for the expenses was frivolous. Accordingly, she issued an order to show cause why the lawyers should not be sanctioned.

Go here for the full story.

DOJ announces plans to prevent prosecutorial misconduct

Law.com is reporting today that the US Justice Department recently outlined a plan to ensure prosecutors play by the rules when dealing with evidence. Think about that for a moment. We need a full out effort by the Dept of Justice to make sure prosecutors play by the rules. And here I thought professionalism and the duty to follow rules of professional conduct were there for that...

Assistant Attorney General Lanny Breuer has pitched what he calls a "comprehensive approach" to reform -- a plan that includes mandatory annual discovery training for all prosecutors and the creation of a new position at Main Justice that will focus on discovery issues. But Breuer said the department would fight any effort to require prosecutors to turn over all favorable information to the defense. Under current rules, prosecutors only have to give the defense information they plan to use at trial or information that they determine would be exculpatory. Defense lawyers and some judges have argued prosecutors have too much control in trying to glean the defense theory of a case before deciding whether information must be turned over. Go here for the full story.

UPDATES on this story: here and here.

Article on the future of lawyering

Richard Susskind has written a book called "The End of Lawyers?" in which he expresses his views on the state of the legal profession and the outlook for the future. Here is a link to a short article in which he discusses the book and his conclusions, which include his idea that law practice will soon consist of five different types of lawyers:

The first will be the "expert trusted adviser." This is the provider of bespoke legal service. The arguments of my book suggest that market pressures will generally discourage lawyers from handling matters in a bespoke manner wherever this is possible. Instead, standardized or computerized service will be preferred. However, on some occasions bespoke work will be unavoidable.

The second category of lawyer for the future is the "enhanced practitioner." This is the individual whose legal skills and knowledge are required not to deliver a bespoke service but, enhanced by modern techniques, to support the delivery of standardized, systematized and (when in-house) packaged legal service.

The third category of lawyer will be the "legal knowledge engineer." Since legal services will be increasingly standardized and (in various ways) computerized, this is the category of people who are going to be needed to organize the large quantities of complex legal content and processes that will need to be analyzed, distilled and then embodied in standard working practices and computer systems.

The fourth category will be the "legal risk manager." The job description of this category of lawyer is to avoid legal problems than resolve them.

Finally, the fifth category of future lawyers is the "legal hybrid", who will be superbly schooled and genuinely expert in other related disciplines and will be able to extend the range of the services they provide in a way that adds value to their clients.

New Law Tries End Use of 'Runners'

Connecticut has enacted a new law that imposes penalties on "runners" (people who rush to accident scenes or hang out in Emergency rooms in order to steer victims toward specific doctors or personal injury lawyers) and those who hire them. Connecticut is now among 10 states that have enacted such a law. Lawyers will face as much as a year in jail and a fine of up to $5,000 if they're caught hiring runners to drum up personal injury litigation business. The same penalties apply to anyone who is acting as a runner. Go here for the full story.

Bankruptcy judge has had enough

US Bankruptcy Judge Alan Jaroslovsky has had enough incompetent lawyers appearing in his courtroom; so he has given them the following notice:

NOTICE TO BAR REGARDING INDIVIDUAL CHAPTER 11 CASES

There has been a recent spate of individual Chapter 11 cases filed by attorneys who have neither the experience nor the education nor the competence to venture into Chapter 11. I believe that there are very few bankruptcy lawyers other than State Bar certified specialists who should be contemplating representation of Chapter 11 debtors in possession.

I see rampant errors being made in issues relating to cash collateral, conflicts of interest, and compensation.

The use of cash collateral without permission, even for necessary expenses, is usually fatal to Chapter 11 cases. There are procedures in place to obtain emergency permission to use cash collateral. If you don’t know them, you should not be taking Chapter 11 cases.

A Chapter 11 is not just a big Chapter 13. If you represent a Chapter 11 debtor in possession, your client is the estate, not the debtor personally. Failure to understand this results in serious liability exposure.

Forget about trying to fix your compensation. You will be paid what I allow, period. I suggest you not spend retainers until your fees are allowed to avoid having to return money you have already spent.

I see frequent malpractice in individual Chapter 11 cases and I am quick to note it on the record. Your employment will not be approved unless you have substantial current malpractice insurance. If you are going “bare,” don’t even think about taking a Chapter 11 case.

For the Judge's official home page go here. The link to this letter appears at the very bottom.



Thanks to The Legal Profession Blog for the information.

Article on the new attorney-client privilege rule

Here is an article reviewing the effects of Federal Rule of Evidence 502, which was approved just about one year ago.

Class action vs lawyer who faxed ads to unwilling recipients

A judge of the US District Court for the Northern District of Illinois has certified a class of plaintiffs in a lawsuit accusing a Skokie lawyer of violating the Telephone Consumer Protection Act by allegedly faxing advertisements to unwilling recipients.The case is Ira Holtzman v. Gregory P. Turza.

Another case of sanctions for representing buyers and sellers at the same time

The Delaware Supreme Court has issued a long opinion suspending an attorney for his practice of representing buyers and sellers at the same time in real estate transactions. The case is In the Matter of a Member of the Bar of the Supreme Court of the State of Delware: I. Jay Katz, and the opinion is available here.

More on the issue of perjury

A couple of days ago I posted a note on the ongoing debate related to an attorney's duties when a client commits (or intends to commit) perjury (here). The debate continues here.

For my students: this is very important material that we will discuss in detail in a few weeks (chapter 12).

Supreme Court oral argument on ineffective assistance of counsel

A couple of days ago I reported that the US Supreme Court was about to hear oral arguments on a case on whether incorrect legal advice about the consequences of a guilty plea should be considered ineffective assistance of counsel (here). Here is a short summary of the argument. Here's another.

Multi-million dollar fine for unathorized practice of law

The Supreme Court of Ohio today imposed a civil penalty of $6,387,990 against two companies and their co-owners for engaging in the unauthorized practice of law, and issued an injunction permanently barring those companies, their principals and employees from any future marketing or sale of living trusts or other estate planning documents or services to Ohio residents. Also, the Court found that the companies used third-party marketing firms to send direct mail ads to lists of Ohioans 65 and older and also targeted senior citizens with magazine advertising containing exaggerated claims regarding the costs and complications of disposing of their assets through a will. Persons responding to the ads were subjected to high-pressure in-home presentations in which non-attorney sales representatives provided them with legal advice including inflated “estimates” of the costs of probating their estates and the purported savings the customer would realize by purchasing American Family’s standardized living trust document – regardless of the size or composition of that individual’s estate or his/her existing estate planning documents.

For a detailed discussion of the case go to the Legal Profession Blog.

Judge imposes fine on "birther" lawyer

A little less than a month ago, I reported that a federal District Court Judge had issued a warning to attorney Orly Taitz to stop filing “frivolous” lawsuits alleging that President Obama is ineligible to serve as President. (See here). Today, several sources are reporting that Taitz continued to file motions in the case, including a motion asking the judge to recuse himself and that, in response, the judge has fined the attorney $20,000 stating that “Counsel’s wild accusations may be protected by the First Amendment when she makes them on her blog or in her press conferences, but the federal courts are reserved for hearing genuine legal disputes, not as a platform for political rhetoric and personal insults.” The judge's order is available here.

In his comment on this case, Prof. Jonathan Turley quotes a letter sent by the client that Taitz claimed to be representing sent directly to the judge in which she states she did not authorize Taitz to file any motions or to speak for her. Prof. Turley's coverage of the story is available here.

For more on the story, links and some commentary, you can also go here, here and here.

How not to practice law: provide the wrong citation to key cases so the judge goes nuts trying to find them

Here is another installment of our public service series "How NOT to practice law." Today's lesson is an old classic: piss off the judge! or go ahead and do what you can to make the judge's life/job more difficult.

The Wisconsin Court of Appeals has reportedly imposed a fine on a lawyer for getting a citation wrong in a brief. The problem is not that the citation was wrong per se, though. The problem is that the court had to go on a wild chase for the case the lawyer cited. Given that the attorney provided the wrong name of the case, the wrong citation and the wrong deciding court it was hard to figure out if the case actually existed and held what the attorney claimed it did. After some sleuthing, the court eventually did find a case -different name, cite, court, etc. but did not forgive the fact that the attorney's carelessness caused it to waste so much time and effort.

DC Bar Opinion on joint defense agreements

Joint defense agreements do not create former-client conflicts of interest, but a lawyer who participates in a joint defense arrangement may acquire contractual and fiduciary obligations to members of the joint defense group who are not the lawyer's clients, the District of Columbia Bar's ethics committee advised in a September opinion (District of Columbia Bar Legal Ethics Comm., Op. 349, 9/09).

California adopts a program to provide lawyers in civil cases

The Legal Ethics Forum is reporting today that California just enacted a pilot program that will provide lawyers for indigent clients in civil cases. This is great news and hopefully will grow and expand to other states in the near future.

Supreme Court hears two cases on "lawyering" this week

The Supreme Court will hear arguments in Padilla v. Kentucky today and Perdue v. Kenny A. tomorrow. Padilla involves an ineffective assistance of counsel claim brought by a legal permanent resident whose attorney incorrectly advised him that pleading guilty to three drug-related charges would not result in deportation. The ABA in its amicus brief argues on behalf of Mr. Padilla that a lawyer's duty of competence includes the duty to be informed about the consequences of a guilty plea and to advise the client accordingly. Perdue questions whether a fee awarded pursuant to a federal fee-shifting statute may be enhanced based on the quality of performance and results obtained.

Thanks to Renee Newman Knake of the Legal Ethics Forum for the information and links.

Here is an additional link to an article in today's Law.com on the Perdue case.

Super Lawyers?

Many of you may have seen a publication called "Super Lawyers." It is actually an advertising supplement to a magazine. You don't have to pay to be listed, you only pay if you want your name displayed prominently in a large box or in a page with a story about you that looks like news.

Can a lawyer who is included in the publication then publicize that he or she is a super lawyer? This has been the source of much debate recently, particularly in New Jersey where the state Supreme Court is debating whether to amend its rules on advertising to regulate what kind of information lawyers can use to advertise services. For an update on that story go here.

For the thoughts of a practicing attorney who is included in Super Lawyers go here, where he states in part: "What, exactly, do I do with this "honor"? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? . . . I have mixed feelings about this. The company that puts out the information says the lawyers are vetted before they appear. . . . Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. . . . I must confess that this all seems pretty meaningless to me. . . . But that little logo sure looks nice, doesn't it? And it would look great on a website if someone were looking for counsel. (Though not so good if a juror should see it and conclude I was thoroughly full of myself.) . . ."

The perjury "trilemma"

All students of legal ethics are familiar with Professor Monroe Freedman's famous article on the "trilemma" lawyers face when dealing with possible perjury. Attorneys are supposed to keep their client's confidences secret, to advocate zealously and to disclose perjury. You can't do all three. Something has to give. His original article, published in 1975, started a debate that continues to this day. Literally. Prof. Freedman just posted an invitation to the members and guests of the Legal Ethics Forum to debate the subject. Go here to check it out and refer back to it as more participants will likely contribute to the discussion in the near future.

New Jersey to impose mandatory CLE

After two years of fact-finding and deliberation, New Jersey's Supreme Court announced Thursday that it will require mandatory continuing legal education for all plenary-licensed attorneys, starting next year. Go here for the full story.

Attorney should learn from his 5 year old son

The Legal Profession blog is reporting today that an attorney was suspended for 60 days, with two years of probation and was ordered to take the MPRE within one year for an incident involving driving under the influence and lying to the police.

To make a long story short, the police were investigating an accident but could not find the occupants of the car. They found a purse with the attorney's address in it and went there to continue the investigation. When asked about the accident, the attorney denied he had been driving.

But then the lawyer's five-year-old son told police that his father was the driver of the car involved in the accident.

The police later confirmed the lawyer was under the influence of alcohol and that his wife had gone to the hospital to get treatment for a minor injury. The lawyer was charged with four felonies, including child abuse and causing injury while driving under the influence and he pleaded guilty to the lesser charges.

Important changes to Federal Rules of Civil Procedure

I recently commented on how missing a deadline in litigation is one of the dumbest things a lawyer can do (here and here).... Well, now comes word that important changes to the Federal Rules of Civil Procedure will go into effect on December 1, 2009 (unless Congress stops them) that will affect the way time is calculated in federal court litigation.

In a nutshell, the changes seek to standardize how days are calculated by counting all days. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. The Rule that allowed for adding time for service by mail has been deleted.

The Drafting Committee has asked the district courts to revise their Local Rules accordingly, and to do so effective December 1. If it is not the rules will be a mess to deal with.

For PowerPoint presentations explaining the amended rules and their operation in court proceedings go to www.uscourts.gov/rules/presentations.html.

For more details on this story go to the Drug & Device Law Blog, which includes a list of the affected rules and other links.

Article on the propriety of criticizing judges

Here is a link to an interesting article on the propriety of criticizing judges.

Who gets the fee when a lawyer leaves a firm taking the client with him?

Here is an interesting case from the Illinois Appellate Court, but before I comment on it, let me say that I have not read the case itself. I am going here based on a newspaper account.

In this case, a plaintiff hired a particular attorney to represent him in a personal injury matter. At the time, the attorney worked for a law firm. The plaintiff entered into a contingency agreement with the firm (and the firm entered into an agreement to split the free with the attorney who referred the case to the firm too.)

The case was handled by the one attorney in the firm to whom the case had been referred, but since the fee would be based on a contingency, the attorney did not keep any detailed records of the time spent on the case.

At some point in time later, the firm fired the attorney handling the case for the firm, but the client decided to keep him as his attorney so the attorney took the case with him. The case eventually settled for $275,000 and then the firm filed a motion essentially seeking to recover what it claimed to be its fee in the case. After the parties agreed to certain disbursements from the settlement amount, they could not agree on how to divide the remaining $82,500.

The trial court then found that the firm was entitled to its original contract fee of one-third of the settlement, less the amount of fees the lawyer was entitled to based on an estimate of the specific time he spent on the case (based on a $300 per hour rate). The attorney, as you would expect, argued that since he did most of the work the analysis should be exactly the opposite: that he should get the one third fee minus the value of whatever the firm could show it did for the case.

On appeal, the appeals court affirmed the trial court's calculations. The court said that a settlement was reached before any depositions were taken and before any substantive motion had been filed and that the "overwhelming" amount of work that had been done by attorneys and legal assistants employed by the firm.

This is a tough one. On the one hand, I sympathize with the notion that the attorney should get the larger chunk of the fee if he did most of the work, but, on the other, the client had a valid contract with the firm -- not with the specific attorney. It would be important to determine what happened when the attorney left the firm and took the client: did he execute a new fee agreement with the client? Did the client clearly release the firm from its duties as his legal representation? And then, of course, there is the important factual matter of who actually performed most of the work -- about which there seems to be a disagreement.

Without more, it is difficult to tell whether the court made the right decision. The case is called Rafael and Magdalena DeLapaz v. Select Construction, Inc., et al., No. 1-08-2072.

UPDATE: Here is the link to the opinion: DeLapaz v. Select

Should a firm be entitled to $42 million contingency fee?

Assume a firm represented a client for 22 years in litigation over the estate of her husband. During that period, the client paid hourly fees. Then, at some point, the client agreed to change her agreement to a contingency fee based on the value of the estate. Then, just four months after the contingency fee agreement is reached, the value of the estate is finally settled to be $104.8 million. Should the firm be entitled to a $42 million contingency fee? That is the question in a trial that began this week in New York. For more on the story go here.

New report highlights crisis of access to legal representation

A new report by the Legal Services Corp. (the nonprofit agency that receives and disburses congressional funding to legal aid organizations) finds that half the people who seek legal aid from LSC-funded programs are turned away, primarily because of a lack of resources. The report is available here. For more on the story go here and here.

Supreme Court to hear case re immunity for prosecutorial misconduct

On Wednesday, November 4, the U.S. Supreme Court will hear oral arguments in a case called Pottawattamie County, Iowa v. Harrington. It will be an important case with implications for the two courses I teach (torts and professional responsibility).

The professional responsibility angle comes from the fact that the issue in the case originates in prosecutorial misconduct. Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.

Prosecutors are lawyers subject to the ethical mandates of the rules of professional conduct. They have a lot of discretion in the performance of their functions but they are also considered ministers of justice whose main duty is to see justice done, not to advocate for a client or for a predetermined result.

But this case is not about the misconduct. It is about a civil cause of action for damages based on the misconduct. As to that cause of action, the prosecutors contend that they have absolute immunity from liability. (The Obama administration has filed an amicus brief in support of this position, by the way.)

Here is the interesting part: prosecutors generally have absolute immunity from civil liability for their conduct in the process of prosecuting the case, but, in addition to being just prosecutors, prosecutors are members of the law enforcement team that investigates and "builds" the cases that they later prosecute. This "dual role" is simply part of their role in the system. Should their right to immunity (or, more accurately, the level of that immunity) change depending on the role they are playing at the time of the alleged violation of civil rights?

In this case, the prosecutors' misconduct initiallytook place while they were involved in investigating the crime since they allegedly conspired with the police to manufacture false evidence. Their misconduct then continued during the trial since they presented perjured testimony.

Therefore, the question is whether prosecutors should be entitled to absolute immunity when they engage in misconduct during the investigative phase of a case even if that misconduct is the basis for subsequent misconduct for which they have absolute immunity.

For a lot more information, on this case copies of the briefs and other documents go to the Supreme Court Wiki site here.


Thanks to the Drug & Device Law blog for the info and links.

The King has been disbarred

The LegalProfession blog is reporting today that "The king of class actions" has been disbarred. The full story is here.

Should a lawyer who stole money on more than one occasion be reinstated?

My students and readers of this blog know how I would answer this question... but here is the story:

The Legal Profession blog is reporting that the Oklahoma Supreme Court has reinstated an attorney who had resigned after misappropriating $50,000 from his firm. In dissent, Justice Taylor stated: "I dissent to the reinstatement of the Respondent. He is a thief. He stole over $50,000.00 from his law firm and actively attempted to conceal the theft. He was a court-appointed trustee and stole over $100,000.00 from a bankruptcy estate. He is a convicted felon. He made restitution and apology only after being discovered and confronted."

Former Toyota in house counsel turned whistleblower referred to disciplinary authorities for disclosing information

About a month ago, a former high-ranking in house attorney for Toyota alleged that the auto maker conspired to illegally conceal and withhold evidence in Toyota rollover lawsuits filed by consumers who claimed that vehicle design defects caused severe injuries. For the full story go here, here, here.

Now comes word that a judge has referred the lawyer to the State Bar of California for possibly violating the rules of professional conduct by disclosing confidential attorney-client information. For this aspect of the story go here.

When is a conflict a conflict?

In determining that a law firm should not be removed as counsel in a case where several of its lawyers may be called as witnesses, the U.S. Circuit Court of Appeals for the 3nd Circuit has issued a "new formulation" of the rule requiring the disqualification of attorneys for a conflict of interest by holding that "[W]e now hold that a law firm can be disqualified by imputation only if the movant proves by clear and convincing evidence that (a) the witness will provide testimony prejudicial to the client, and (b) the integrity of the judicial system will suffer as a result." The opinion is available here. For more on the story go here.

9th Circuit Court of Appeals holds statements made during internal investigation are not privileged

Last week in class we covered the difficult issues that arise when attorneys conduct internal investigations for entity clients. Among these, we talked about the possibility that individuals interviewed by the attorney might feel the attorney represents them and that therefore the information they provide will be confidential.

Yesterday, the Court of Appeals for the 9th Circuit decided a closely watched case on that very issue. In that case, as part of an internal investigation related to alleged backdating of stock options the lawyers for a company interviewed the chief financial officer of the company. He disclosed relevant information which was eventually disclosed to the authorities. The CFO claimed that the attorneys represented both him personally and the company at the time of the investigation and that the statements were confidential and should not have ended up in the hands of the U.S. government. Assuming this was a case of "dual-representation" an interesting question arises as to whether the entity client "controls" the privilege. The opinion, which is available here, holds that the individual could not claim the attorney-client privilege to prevent the disclosure of the statements but only because the statements were not made "in confidence" -- they were made in the presence of people outside the protection of the privilege to begin with.

For more on the story go here, here, here and here.

Florida disciplines attorney for criticizing judge on his blog

Florida State bar authorities have fined trial lawyer Sean Conway $1,200 for criticizing a Ft. Lauderdale Judge on a blog, including calling Conway an “evil, unfair witch.” Prof. Jonathan Turley has reported on this case previously here and in a new post today he calls the ruling "a major blow to free speech and another case of courts or the bar overreaching in punishing lawyers and parties for their criticism of judges." Go here for his comments on the case.

The most common factors leading to legal malpractice claims

Summarizing the discussion during an ABA panel discussion held in Chicago last Thursday, an article published in Friday's Chicago Law Journal states that the top mistakes that lead to malpractice claims are:

--Poor communication between lawyer and client, resulting in disparate understandings of the arrangement.

--Missed deadlines through bad calendaring or failure to know deadlines.

--Poor investigation that misses basic facts.

--Failure to catch errors in work delegated to assistants.

In personal injury cases, blowing the statute of limitations leads the way in malpractice errors, either because the attorney entered the wrong date in the law firm's or lawyer's calendar, the attorney waited for the very last day to file or because the attorney did not know statutory deadlines. Any of these can be used to support a claim of incompetence under Rule of Professional Conduct -- although it is unlikely that a one time ocurrence by itself will result in such a finding.

The second most common reason for malpractice complaints is be familiar to students of Professional Responsibility: the failure to decline the case in time for the plaintiff to find another lawyer. Often a lawyer doesn't make it clear to a potential client whether the lawyer agreed to take the case or is just looking it over. And the lawyer never gets around to actually rejecting the representation.

Evidently, both of these mistakes are pretty basic. In fact, I cover both of them in the classes I teach. In Torts, a first semester class, I tell my students that buying a calendar and learning how to use it is the fist thing they should do after they get a job and that missing the statute of limitations is the dumbest thing they can do. In Professional Responsibility, a third semester class, we cover the issues related to the formation of an attorney-client relationship by discussing the famous case Togstad v. Vesely, Otto, Miller & Keefe which illustrates the importance of letting a client know clearly the decision not to agree to the representation. If a second year law student knows not to make these mistakes, there is no excuse for attorneys in practice to be making them.

More on flat fees

Earlier today I posted a note about when is a flat fee earned (here). I then came across this short comment (here) regarding how disciplinary authorities deal with the issue of whether a flat fee has been earned. In part, it states:

"At present, if a representation ends early, the discipline system will often try to assess what portion of a fixed fee a lawyer earned (i.e., what is “reasonable”) by multiplying the number of hours worked by a reasonable hourly rate. Thus, if a lawyer who regularly bills $200 per hour collects a $5000 fixed fee to prepare a will, but spends only two hours on the will, disciplinary authorities may try to force the lawyer to refund the additional $4600. . . . .

"If disciplinary authorities continue to insist that a challenged fee will be assessed through the hourly billing prism, they will push for fixed fee engagements to be “lose-lose” engagements for the lawyer. . . .

"The limit on reasonableness of fees, commonly Model Rule 1.5, does not require such an outcome."

Sanctions for misconduct during discovery

On Wednesday, a California appeal court upheld a sanction of more than $6,600 after finding that the plaintiffs in a property dispute had engaged in "gamesmanship" in a deliberate effort to bog down discovery. The court held that "the record here strongly indicates that the purpose of plaintiffs' objections was to delay discovery, to require defendants to incur potentially significant costs..." The text of the opinion is available here. For more on the story go to Law.com.

Duty to communicate settlement offer

A couple of days ago I mentioned in class the possibility that a client could sue an attorney arguing negligence in handling a settlement offer. Right on cue, today's news in the Wall Street Journal Law Blog include this item: "Susan Stanford is suing her former divorce lawyer for $200 million, alleging that the lawyer, Nancy Rommelmann, failed to tell her of a verbal offer to settle her divorce for $200 million last year. Click here for the story, from Bloomberg. Stanford filed a complaint (link not available) on Thursday in Houston state court."

Are flat fees earned upon payment or is the attorney simply guarding the money for the client?

There has been a lot of discussion recently on the increasing popularity of "flat fees." So, it is important to understand the possible ethical issues that arise from their use. For example, it is important to know when the fee is actually earned, since the attorney has a duty to return any unearned fees at the end of the representation.

Yesterday, the District of Columbia Court of Appeals published an opinion in which it held that that a flat fee paid to a lawyer remains the property of the client until it is earned. Unfortunately, it is not particularly clear at which point the fee is, in fact, earned. The court simply suggested that whether the fee has been earned will be determined based on an objective reasonableness standard "in light of the scope of the representation" and "in the context of the anticipated length and complexitity of the representation."

The text of the opinion is available here. For more on the story go to the Legal Times Blog and to the Legal Profession Blog.

Breaking news re privilege claim before Congress

Law.com is reporting Bank of America did not meet the deadline to turn over documents to the House Committee on Oversight and Government Reform. The Committee had given the bank until noon today to turn over documents related to legal discussions BofA had with outside counsel before and after it absorbed Merrill Lynch in Dec. 2008. The bank resisted, saying the documents are protected by attorney-client privilege

Go here for the full story.

More on the cases on the law of lawyering pending before the Supreme Court

A few days ago I reported that there are six cases on the law of lawyering pending before the US Supreme Court (see here). Thanks to Renee Knake and the Legal Ethics Forum, here is a list of the issues in those cases:

(1) Do provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act regulating attorneys’ advice to clients and mandating certain advertisement disclosures violate the First Amendment? Milavetz, Gallop & Milavetz, P.A., et al. v. United States, 541 F.3d 785 (8th Cir. 2008)

(2) Is an attorney’s faulty advice grounds for setting aside a criminal defendant’s guilty plea? Padilla v. Commonwealth of Kentucky, 253 S.W.3d 482 (Ky. 2008)

(3) When, if ever, does a novice attorney’s inexperience constitute ineffective assistance of counsel? Wood v. Allen, 542 F.3d 1281 (11th Cir. 2008)

(4) Should a court’s order compelling production of privileged materials be immediately appealable? Mohawk Industries, Inc. v. Carpenter, 541 F.3d 1048 (11th Cir. 2008)

(5) Can quality of performance and results obtained justify an enhancement to an attorney’s fee award under a federal fee-shifting statute? Perdue v. Kenny A, 532 F.3d 1209 (11th Cir. 2008)

(6) May a prosecutor be liable for civil damages for procuring false testimony and introducing that evidence against a criminal defendant at trial? Pottawattamie County v. McGhee, 547 F.3d 922 (8th Cir. 2008)

Does the attorney-client privilege apply in Congress?

A Congressional committee is prepared to require Bank of America to reveal information it has withheld from the SEC and AG Cuomo on grounds of privilege. Numerous members of Congress have claimed over the years that the privilege doesn't apply in Congress. The privilege gives a client the right to prevent disclosure of information in a proceeding where the rules of evidence apply. Since the rules of evidence do not apply in a hearing before Congress, it follows that the Committee would not be persuaded by the argument that the witness can object to disclosing the information. Yet, the Bank claims that disclosing the information in Congress may consitute a waiver in other proceedings where the privilege would apply. Also apparently there has been a practice of allowing witnesses to claim the protection of the privilege during Congressional hearings in the past. Apparently, no court has ever decided the issue and there is very little literature on the subject. It will be interesting to see what happens.

Video on Alton Logan's case

Last week in class we discussed the duty of confidentiality and some of its exceptions. During our discussion I mentioned a 60 Minutes segment about the case of Alton Logan, who was recently released from prison based on the testimony of two attorneys who knew he was innocent but did not say anything for 26 years. The case raises the question whether it would be a good idea to add another exception to the list in Model Rule 1.6(b). Here is the 60 Minutes segment in its entirety. It starts after a short commercial and is about 12 minutes long. (You can view it in full screen by clicking on the square icon in the lower part of the image.)

Judge issues warning to attorney for filing frivolous case arguing Pres. Obama is ineligible to serve as president

U.S. District Court Judge Clay Land has issued a stern warning to attorney Orly Taitz and others in the so-called “birther” campaign to stop filing “frivolous” lawsuits. Land threw out the lawsuit filed on behalf of Capt. Connie Rhodes who is an Army surgeon challenging her deployment orders due to President Barack Obama’s alleged ineligibility to serve as President. Land held that the claim presented no credible evidence and made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve as president of the United States and that, "[i]nstead, she uses her complaint as a platform for spouting political rhetoric, such as her claims that the president is ‘an illegal usurper, an unlawful pretender, [and] an unqualified imposter.’” Land then warned the lawyer who filed the claim that he may impose sanctions if she files any more “similarly frivolous … actions in this Court.”

For more on this story go here (incl full text of the opinion) and here.

Minnesota Supreme Court suspends judge who referred clients to his own lawyer

The Minnesota state supreme court has suspended a judge for six months without pay for steering matrimonial mediation cases to his own divorce attorney. The court's opinion can be found here. Prof. Jonathan Turley has more on the story here.

Judge strikes DuPont defenses because of misconduct during discovery

Saying that DuPont engaged in "a deliberate scheme to interfere" with the court's rulings during more than a decade of litigation, a judge has struck the DuPont's defenses in two companion cases. Go here for the full story and more links.

Conviction upheld even though the judge and prosecutor were dating

The Texas Court of Criminal Appeals — the state’s supreme court on criminal matters — has ruled that a man facing the death penalty for murder will not get a new trial despite the fact that the prosecutor on the case and the judge who tried the case were at the time involved in a romantic affair. Oh, and by the way, eight of the nine judges who decided the case had previously served on the same bench as the judge who is at the center of the controversy.

For the full story, comments and links to other sources, go here and here.

Over at Legal Ethics Forum, Prof. Andrew Perlman adds: "Notably, and again not surprisingly, the Texas court's order offers no legal analysis or reasoning. It simply offers a bare bones conclusion: "We find that the allegation fails to satisfy the requirements of Article 11.071, § 5(a)." And why is that, exactly? If a law school graduate offered that as "legal analysis," it wouldn't suffice to pass the bar exam. Apparently, it suffices for Texas judges in capital cases when one of their former colleagues is accused of misconduct. This is not the first time that I've seen a state court in a capital case summarily reject a strong argument without any legal analysis, and it is unlikely to be the last. Kudos to the dissent for actually addressing the evidence and issues that were presented."

UPDATE on this story April 21, 2010.

More on the slow death of the billable hour

I have blogged in the past about the debate on whether the billable hour system of billing is losing its popularity (here).

Today, in an article in the Wall Street Journal law blog, Ashby Jones states that "Dating to about five minutes after the billable hour was born, folks have been predicting its death. But throughout it all, no other billing method has come close to knocking the billable model from atop its lofty perch. Until now, it seems. According to an article in Legal Week, both Mayer Brown and Reed Smith are looking hard at moving to fixed or capped fees for their transactional work. is looking to move away from traditional hourly billing models, with plans to bring in fixed or capped fees for transactional work."

For the full article go here.

Six cases before the Supreme Court on the law of lawyering

There is a very interesting note at the Legal Ethics Forum, pointing out that the United States Supreme Court will hear no fewer than six cases related to the role of attorneys and the practice of law during the current term and asking what might be the consequences to regulation of the profession.

Morning cartoon

Go here.

"Professionalizing Moral Engagement"

I usually start my course on Professional Responsibility with a discussion of a case where a lawyer is faced with a representation that has troubling moral implications. I ask my students to list options for the attorney. When we step back and look at the list, we usually find a very clearly defined spectrum... from quitting the job (or the profession entirely) ... to doing what the client wants and not caring about anything else (complete "detachment" or, as one of my students called it this year, becoming a "robot"). Somewhere in the middle, but usually not the first option suggested, someone asks, why not talk to the client about it?... and then someone says because maybe the client will think you are weak, or because that's not what the client wants to hear, etc... And so goes the discussion. Good stuff.

We usually agree to disagree on exactly what is the best course of action for that particular case but we do agree that as lawyers we often will have to face some level of moral detachment.

Coincidently, I just came across a note in the Legal Ethics Forum about an article by Prof. Rob Vischer on this subject called Professionalizing Moral Engagement (available here) which proposes that the professional norm should be the opposite of moral detachment. Here is the abstract:

This essay is an invited response to Michael Hatfield, who argues that the legal profession might avoid creating lawyers willing to “sign off on torture if their professional education did not begin with dis-integrating the skills for intellectual agility from the skills for moral resolution.” I contend that we do not need lawyers to reach “moral resolution," for it is not the lawyer’s job to resolve the moral questions that clients face. We do need lawyers, on the other hand, to ensure that clients are aware of the moral questions that are often embedded in the legal questions raised by the representation. Lawyers’ recurrent failure to raise moral questions infringes on client autonomy by precluding the client’s ability to fully consider what is at stake in the case. Our approach to professional formation both during and after law school almost totally ignores this “moral due diligence” dimension of the attorney-client relationship. Especially in cases where the governing law is indeterminate, lawyers need to be able to engage their clients in a moral dialogue, which requires both familiarity with, and sensitivity to, moral reasoning. But lawyers’ capabilities in this regard should not be deployed in order to resolve the moral questions; rather, they should be deployed in order to assist the client in resolving the moral questions. The essay lays out some possible avenues by which legal education can support the project of professionalizing moral engagement.

Another question re adequate sanctions? What do you think...?

Let's assume that an attorney devotes a substantial amount of time to preparing an appeal brief, but, even after having been granted five extensions, was unable to submit the brief in a timely manner. Then the attorney decides to try to get away with it by placing a back-dated stamp on the envelope and lying to the court about whether the brief was filed on time. In fact, the brief was four days late. After doing all this, the lawyer feels too guilty and decides to confess. The court dismisses the appeal and the lawyer has to face a disciplinary procedure. What sanction would you impose?

The Colorado Hearing Board imposed a suspension of one year and one day, with all but 60 days stayed, and probation for two years. The board gave significant mitigating weight to the attorney's "admirable action in self-reporting [the] misconduct." But for that factor, the board states that disbarment would be the appropriate sanction.

Go here for a copy of the opinion. Thanks to the Legal Profession Blog for the information and link.

Another example of inadequate sanctions

Here is a summary of a new case out of California, taken from the Legal Profession Blog, that in my opinion illustrates my point regarding inconsistency and inadequacy of sanctions.

In this case, the attorney stipulated that he was incompetent, that he kept money that belonged to the client and that he entered into a business transaction with a client without fully disclosing the terms of the transaction. In other words, he stole money from the client and abused his position to take advantage of the client. The client had to go through the trouble of hiring another attorney to sue this attorney to recover the money the attorney had stolen. And the only mitigating circumstances apparently were that he had no prior disciplinary record and that he "cooperated with the bar’s investigation." In other words, that he confessed.

And for all this all he got was a 60-day actual suspension (plus probation for one year -- during which he can continue to practice, of course) and was ordered to take the MPRE within one year. What a joke!

The facts of the business transaction part of the misconduct are interesting: In lieu of attorney fees, the attorney accepted two Japanese military pieces, a helmet and a hand sword guard. Without obtaining an expert appraisal, the attorney and his client agreed the sword was valued at $1,500 and the helmet at $2,500 to $3,500.

Accepting things other than money as payment for services is not inherently wrong, but any such transaction is very well regulated by the rules of professional conduct. The transaction has to be clear and fair. In this case, in violation of the rules of professional conduct, the attorney did not advise the client to seek independent legal advice or put the terms of the arrangement in writing.

For the full story and links, go here.

Another example of why light sanctions set a bad example.

I have argued before that it is difficult to understand why a state would not disbar an attorney who steals from his or her client. (See here, here and here, in just the past few months.)

Now comes a new example of the problem. The Legal Profession Blog is reporting today that the District of Columbia Court of Appeals has disbarred a lawyer for his cumulative conduct over more than ten years evincing 'non-negligent misappropriation and dishonesty...' and other misconduct. The opinion is available here.

Ten years!? It took ten years of misappropriation and dishonesty to get rid of this guy?!

But wait a minute, they did disbar him; so what am I complaining about?

Well, here it is: the lawyer in this case had already been disciplined (back in 2001) for similar conduct. At that time, the hearing committee recommended disbarment but the Board on Professional Responsibility and the Court rejected that recommendation in favor of a mere six-month suspension. Way to set a great example with a nice slap on the wrist, guys! Much good it did. And so a lawyer was allowed to continue to engage in misconduct for another 8 years.

As Mike Frisch, of the Legal Profession Law Blog states -- and I agree -- if the recommendation to disbar had been followed 8 years ago, a lot of time, trouble and additional victims would have been avoided.

Fine for violating "waiting period" provision

Last night in class we discussed advertising and solicitation. The last case we talked about was Florida Bar v. Went for It, where the Supreme Court held that waiting period provisions are constitutional. Soon after that decision, a number of jurisdictions adopted similar provisions and others were enacted into specific statutes. One of these statutes is a federal law that deals with aviation accidents. In class, I argued vociferously that this decision is contrary to logic and to accepted principles of constitutional law. Justice Kennedy wrote a great dissenting opinion with which I agree.

Now, "right on cue", Law.com is reporting today that a prominent New Jersey personal injury lawyer was fined $5,000 for sending solicitation letters to families of passengers killed in the February crash of commuter jet in Buffalo, N.Y. A federal statute bars unsolicited contacts by lawyers with victims or their families within 45 days of an air-carrier accident. [See full text of letter here.] Go here for the full story.

Also note that back in February I discussed the waiting period provision in New York also in the context of the Buffalo plane crash. See here.

Where have you gone loyalty principle? Our nation turns its lonely eyes to you....

Every now and then, a case (or news item) comes along that makes you question just how strong those "values of the profession" that we love to say we are so proud of really are.

This summer the ABA, and many states, went through lengthy debates on whether allowing firms to use "screening" (in cases where a lawyer moves from one firm to another) goes against the value of loyalty. See blog entries here. As part of that debate, one commentator argued: ". . .it certainly appears that real ethics have given way to the interests of stranded, individual lawyers and surviving firms that want to “cherry pick” from the castaways. . . . Violations will occur and will be covered up. Clients will have to fall back on common law duty of loyalty (and common law principles that impute knowledge within firms) when they suspect their confidences have been purchased with a lateral. . . ."

But, okay, you can make the argument that that question is a close call. You can make an argument to justify the position taken by the ABA. Even after the approval of the new approach to the question, loyalty is still an important value. Right?

Then someone noticed that, as originally drafted, the new rule would have allowed attorneys to use screening to represent clients with competing interests concurrently.

Now, this won't do! So the rule was changed again...

Now enter the well oiled slippery slope.

Law.com is reporting that a Delaware federal judge has OK'd a lawfirm to use of a "screen" between the firm's U.S. lawyers opposing client Wyeth in a U.S. patent case and its European attorneys working with the pharmaceutical company in an unrelated matter.

In other words, the firm is representing Wyeth in one case and opposing it in another over Wyeth's objections.

Note this last piece of information - over the client's objections. So where exactly is the loyalty principle here?

The judge's order reportedly states that the client's opposition "means the firm is technically violating the Delaware court's local rules and the American Bar Association's Model Rules of Professional Conduct."

You have to love the use of the word "technically"! I am sorry, but there is not "technicality" here... The firm's conduct is either a violation or it isn't. And this judge simply admits he has agreed to the firm's attempt to act in a willful violation of the rules.

Why would the judge do that, you wonder? Well, essentially, there are two reasons: it is the client's fault and "globalization."

Yep. Believe it or not, the court allows the firm to willfully act unethically because, according to the judge, it is the client's fault. According to the article, he blamed Wyeth for not clearly indicating to the firm which of its in-house attorneys were working on which matters and for having sloppy legal billing practices. "[These practices] . . . created significant confusion for [the lawfirm] as to which entity or entities it was representing,"

And then, there is the obligatory mention of "globalization." The article quotes one of the partners of the law firm in question as saying: "When you're dealing with increasingly globalized economies, increasingly globalized law firms and different countries . . . . courts will likely look to the use of ethical walls "to reconcile all of these tensions."

Re-enter the aforementioned slippery slope.... Couldn't a firm with separate offices in New York and Chicago make a similar argument?

Maybe the mistake someone found in the new rule 1.10 was really just an omen. Maybe we are not that far away from allowing firms to represent competing interests concurrently after all.

Listen people, if your client objects to your representing a competing interest, do the right thing and respect your client's wishes. Your interest in securing another lucrative client or case should never come before your duty to your current client. That is called your fiduciary duty, in case you forgot.

The latest Gallup poll shows our profession could still go lower in the public opinion of trustworthiness. Let's work to move up, not further down.

Go here and here for the full story.

California considers allowing victim statements as part of discipline cases

Law.com is reporting today that for more than two years, the California State Bar has been endorsing tougher and more aggressive prosecutorial tactics in disciplinary matters. The most recent example is a proposal to allow victims to submit a written statement explaining how their former attorneys' alleged misconduct hurt them. Statements would be submitted only after an attorney has been found culpable of pending charges and would be used by the State Bar Court judge in determining the level of discipline to be imposed. Accused lawyers would be allowed to cross-examine the victim only if they demonstrate good cause.

Go here for the full story.

Case dismissed because of attorney's misconduct

When is attorney misconduct so egregious that it warrants dismissal of the client's case? That was the question for the 7th U.S. Circuit Court of Appeals in determining whether to uphold the dismissal of a case that was thrown out for what Chicago federal district court Judge Milton Shadur described as a "virtually unbroken pattern of dilatory and irresponsible conduct" by plaintiffs lawyer Jorge Sanchez of Despres, Schwartz & Geoghegan. The appeals court upheld Shadur's decision, ruling that a district court's power to sanction for violations of the judicial process is necessary to ensure the integrity of the court. Go here for the full story.

Another criminal conviction vacated because of prosecutorial misconduct

Saying a federal prosecutor engaged in misconduct by asking jurors to rely on false testimony by a government witness, a judge has ordered a new trial for four defendants on some counts in a drug conspiracy case in Chicago. For the full story go here and here.

Time sheets

Time sheets during a "good economy" ...

Time sheets in a "bad economy"

Thanks to David Mills of Courtoons.

New decisions on unauthorized practice of law

The Supreme Court of Ohio ruled today that Cincinnati-based Foreclosure Solutions L.L.C. and the company’s owner, Timothy A. Buckley engaged in the unauthorized practice of law by giving legal advice and negotiating with lenders on behalf of thousands of property owners facing foreclosure of their mortgages. For the full story go here.

Last week, the Illinois Court of Appeals (4th division) decided a case called People v Harris, in which it affirmed a conviction of a law school graduate for "false personation of an attorney." He admitted that he was not admitted to practice in Illinois.

The applicable statute reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”

The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."

This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.

Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?

After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.

The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.

Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.

The opinion is available here.

Incompetence results in discipline

Although the rules of conduct include a rule that requires competence, it is not all that common to see discipline imposed for a single instance of incompetent representation. Thus, it is a little surprising to hear about a new case by the Nebraska Supreme Court in which it suspended an attorney who had failed to provide competent representation in a civil rights lawsuit. The case is available here. The attorney had never handled a similar lawsuit in the past, failed to associate with more experienced counsel and failed to adequately prepare for the case. The attorney did not contest the charges.

Thanks to Mike Frisch of the Legal Profession Blog for the information and link.

On the slow death of the billable hour...

Here is a an article in today's Wall Street Journal Blog on different ways in which companies are trying to avoid having to agree to pay their lawyers by the hour. The article is available here.

Public opinion of lawyers

Only 25 percent of Americans have a positive view of the legal field, according to a new Gallup survey. Go here for the story.

Ninth Circuit reverses conviction because of prosecutorial misconduct

The 9th U.S. Circuit Court of Appeals has thrown out former Brocade CEO Gregory Reyes' criminal conviction for backdating stock options because of prosecutorial misconduct. The Court ordered a new trial because the prosecution misled jurors with false assertions during closing arguments. The opinion is available here. Full story here.

Should stealing from a client be minimized because of "mitigating factors"?

Readers of this blog and my students know how I would answer this question.

The Legal Profession Blog is reporting today on a case where an attorney who had misappropriated entrusted funds was only suspended for one year by the New York Appellate Division. The opinion is available here. In imposing the short suspension, the court considered the following mitigating factors: the lawyer's previously unblemished record, the lack of economic harm to any client, the respondent's sincere remorse, the positive character evidence submitted, the prompt remedial measures undertaken and the fact that the underlying events took place over a limited period during which the respondent was experiencing medical problems and adverse reactions to prescribed medications.

I would have voted to disbar. No question. I can't think of any argument that will convince me that you can justify stealing money from a client. My 5 year old son knows you don't steal. A lawyer who has an ethical and fiduciray duty should know better.

The mitigating factor that bugs me the most is "the lack of economic harm to any client." So, let me get this straight, suppose the lawyer needs money to pay some medical bills... it is now "not so bad" to take clients' money to pay the bills as long as the lawyer replaces the money before anyone misses it?

Moral Turpitude?

I have heard colleages of mine complain that the concept of "moral turpitude" is not very clearly defined as a standard to determine if an attorney should be disciplined. Now comes news of a case that should add fuel to that fire.

The Legal Profession Blog reported yesterday that a District Of Columbia hearing committee held that a lawyer should be disbarred because he engaged in conduct involving "moral turpitude." What is interesting about the case is that this decision was actually a reversal because the Board on Professional Responsibility had concluded that the lawyer's conviction did not establish moral turpitude per se.

Now here are the facts of the case: the lawyer had come home angry about something relating to the Maryland or D.C. lottery. He then proceeded to shoot his wife in the head with a .32 caliber revolver. Fortunately, she survived and the lawyer was sentenced to 25 years in prison.

Now here is my take on this: do we really need to get into a debate as to what constitutes moral turpitude, have a committee issue an opinion, hold a hearing to have another commitee then issue a reversal all to conclude that a guy who shoots his wife in the head when he gets angry and is sentenced to served 25 years in prison should not be allowed to practice law?! I mean, c'mon people! He shot his wife in the head; he got convicted!! What more do you need to know?

Judge holds rules re advertising on the internet are invalid

A federal judge has struck down two Louisiana rules of professional conduct that attempted to regulate Internet advertising. The opinion is available here. The court ruled that the state did not provide any evidence that one of the rules was narrowly tailored to directly and materially advance substantial state interests and that it was not clear that the other could apply to internet advertising.

For more on the story go here.

Lawyer disciplined for blogging about trial while serving as a juror

Not too long ago, I posted a note about a lawyer who got disbarred for not taking his role as a juror seriously. See here. Now comes news of a lawyer who disregarded a judges order not to discuss a case in which he was serving as a juror.

The lawyer had his law license suspended for 45 days when he decided to post comments on his blog about the trial after the judge warned the jurors "not to discuss the case, orally or in writing." Wilson has been cited as claiming that he did not understand the jury instructions to prevent him from posting comments about the trial on his blog. This argument merits only one response: Lame!

The lawyer simply disregarded a court order showing disrespect for the process. And it did not help his case that that the court of appeals reversed the convition at least in part because the lawyer blogged about the case.

For more on the story, go here.

More on the crisis of representation in cirminal cases

Here is another version of the story I reported earlier today about the public defender's office in California refusing to take cases for lack of resources. Go here for the story in Law.com.

How not to practice law: try to blackmail your opponents to get what you want

Blackmail is not a form of zealous advocacy. This is a simple principle apparently too difficult to understand for an attorney in Nebraska who was recently suspended for 120 days for attempting to blackmail a prosecutor to get the charges against his client dismissed. Interestingly, this is an attorney who had already been disciplined on two prior occasions - both for lying to the court.

As the Legal Profession Blog reports, the attorney wrote a letter to a prosecutor claiming that the newly-elected county attorney was in violation of the same law the attorney's client was accused of. The letter stated that if the charges were not dropped the attorney would file a motion requesting an investigation of the county attorney and included a draft of the motion. Finally, the attorney then stated that if the charges against his client were dismissed "Our lips, of course, are forever sealed."

The opinion is available here.

I have an additional comment on this case: is the sanction appropriate? I think this case is another example of the problem of an ad-hoc system of sanctions. Here is an attorney who has been disciplined twice already, who has demonstrated a pattern of conduct and disrespect for the court, his oath and the system. This is his third disciplinary case -- his second suspension. I don't understand why he his allowed to continue to practice law.

Access to legal services in criminal cases still in crisis

The ABA Journal.com is reporting today that the public defender’s office in Alameda County, Calif., is telling judges that it can no longer represent certain defendants because it doesn’t have enough lawyers to do the job and that public defenders in at least seven other states have refused to take new cases or have sued to limit the numbers. Full story here.

Prosecutor suspended for showing photos of rape victim

Prof. Jonathan Turley is reporting today that a County Attorney in Kansas was suspended from practice for six months after he showed pictures of a 17-year-old girl being raped to the parents of the alleged perpetrators over the objections of the victim's parents. The opinion is available here.

The prosecutor decided not to prosecute the offenders. He claimed "he had seen the damage underage drinking could do" and thought it would be better to show the photographs to the parents of teens depicted drinking at the party even though the victim's family objected. He also stated that he did not understand why other women and girls who believed themselves to be victims of sex crimes might now be reluctant to report the crimes or assist with prosecutions.

The victim's parents are now suing the County over the disclosure of the photos. I don't think I have seen any case where prosecutorial misconduct is the basis for tort liability. For the full story, click here.

ABA fixes problems with new Model Rule 1.10

As is well known by now, earlier this year the ABA approved an important amendment to Model Rule 1.10 which recognizes "screening" as an acceptable way to avoid conflicts of interest caused when an attorney joins a new firm. Soon after the amendment was approved, however, it became clear that the rule was drafted in a way that seemed to suggest that screening could be used to avoid conflicts in cases of concurring conflicts - which was never intended. Go here and here for my reports on the approval of the new rule and the problem in drafting. Now comes word that the ABA has approved new changes to the new Rule to correct the mistake. In order to make clear that the rule applies only to laterally hired attorneys, the new rule would read as follows 

 Model Rule 1.10: (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the prohibition is based upon a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and . . . . 

 Thanks to Legal Ethics Forum for the update.

Should lawyer engaged in sex crime be disbarred?

A lawyer who works for the big firm Goldman Sachs has been accused of trying to arrange a sexual encounter with an undercover investigator posing in online chats as a 15-year-old girl. Should he be disbarred if convicted?

Interestingly, the New York Personal Injury Blog points out that although NY appellate courts generally issue unanimous opinions in cases dealing with ethics and lawyer disbarment, last December there was as a sharp divide in an identical case (See: Sex Offender Keeps Law License (Updated)).The Appellate Division, First Department ruled 3-2 that suspension was in order as opposed to disbarment.

New commission to review the ABA Model Rules again

Legal Ethics.com is reporting today that the ABA is about to undertake a new comprehensive review of the Model Rules of Professional Conduct. The new effort will be directed by the Ethics 20/20 Commission and will focus on issues related to globalization, including whether to allow multidisciplinary practice. For the full story go here.

Offensive form of advertising, but is it protected speech?

New Jersey's Committee on Attorney Advertising held a hearing Monday to decide whether legal ethics rules were violated by the placing of a lawyer's advertising leaflet on the windshield of a rape victim's car.

For the full story go here and for some comments go here.