On the role of counsel in delinquency proceedings: Guardian or Advocate?

The Chicago Daily Law Bulletin is reporting that in a petition for leave to appeal in a case called In re Rodney S. (No. 110963), a minor is urging the Illinois Supreme Court to reverse his adjudication of delinquency claiming he was deprived the right to counsel when his attorney acted as his attorney and as a guardian ad litem at the same time.

According to the article, the petition cites a 2007 report on delinquency representation in Illinois that concludes that "the type of delinquency representation provided in Illinois courtrooms varies from county to county, with some delinquency attorneys practicing 'best interest' representation, others following the 'express interest' model, and still others acting as both defense attorney and [guardian ad litem]." You can find the article here if you have an online subscription to the Chicago Daily Law Bulletin. Otherwise, look for it in print in the September 10, 2010 issue (Vol.156, Issue 177).

The petition originates from a decision by the 4th District Appellate Court holding, among other things, that the roles of a defense attorney and guardian ad litem are not always in conflict because they both have an obligation "to protect the juvenile's best interest even if those interests do not correspond with the juvenile's wishes."

That statement 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. I hope the Court takes the case and issues an opinion clarifying the matter.

I also hope that the court takes a careful look at In the Matter of MR, 638 A.2d 1274 (NJ 1994), an opinion of the New Jersey Supreme Court, which is one of the best opinions I have seen on this subject (the reason I assign it to my students when we discuss this issue).

The case provides a very clear explanation of the problem and the proper approach. I hope the Illinois Supreme Court takes a look at it in deciding the case before it. In MR, the New Jersey Supreme Court explains the proper role of an attorney for an incompetent or a minor in the following terms:

As we have recognized in other contexts, the attorney’s role differs from that of a guardian ad litem. . . . A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate . . . and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed. A court-appointed guardian ad litem’s services are to the court ... The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. . . . .

. . . [T]he role of an attorney in abuse or neglect cases and in termination of parental rights cases must be as an advocate for the child. Nothing short of zealous representation is adequate to protect a child’s fundamental legal rights. . . . Requiring attorneys to act as counsel for children in these cases, does not deprive the court of the benefit of the type of assistance afforded by a guardian ad litem. Clearly, as counsel for the child, an attorney could request the additional appointment of a guardian ad litem, and the court sua sponte could do so if deemed necessary. Yet by clarifying an attorney’s role as counsel for the child, substantial evidentiary and procedural dilemmas could be solved. Under the present situation where attorneys assume a hybrid role of attorney/social investigator, questions arise such as the right of the attorney to speak with the parties outside the presence of their counsel; whether communications between a child and the attorney are privileged; and whether an attorney who submits an investigative report is subject to cross-examination. Finally, having attorneys act as counsel for children insures that they are being utilized for a role for which they are trained and suited. . . .

In sum, if it is true that there is confusion (or inconsistency) among Illinois courts on the proper approach to representation of minors in delinquency proceedings, I would fully support a petition to the Supreme Court to clarify the distinction between an attorney and a guardian ad litem.

In delinquency proceedings, the difference between attorneys and GALs is critical. The attorney should follow the client's wishes with the goal of avoiding a conviction or adjudication of delinquency. The guardian, on the other hand, has to fulfill a duty to the court and to act in the best interest of the minor. These two approaches will not necessarily lead in the same direction and should, thus, never be combined or confused. If that is happening now, attorneys are attempting to do the impossible, or, at least, are acting under a clear conflict of interest and the Court should put a stop to it.

According to the petition in In Re Rodney S., the attorney for the minor identified himself as a guardian at litem in court and advocated against the minor's desire to stay at his mother's home. If that is the case, the attorney provided ineffective assistance of counsel. If he was supposed to be advocating for his client, his job was to represent his client, not to advocate against his client. If, on the other hand, he had been specifically appointed to serve as a guardian ad litem by the court, then the minor simply had no legal representation at all in violation of his rights. Any way you look at it, the Court should, therefore, reverse and fix the problem.

You can read the opinion in In re Rodney S. here.  In particular take a look at pages 9 to 11.

UPDATE 9/1/11:  The Court rejected the appeal in In re Rodney S., but a few weeks later granted review in another case that raises the same issue.  That case is called In re Austin M, and it is available here.  The oral argument before the court of appeals in this case is available here.  The oral argument before the Illinois Supreme Court is scheduled for this fall and the case should be decided by the end of this term.

UPDATE 1/12:   The video of the oral argument before the IL Supreme Court is available here.  If you prefer just the audio, go here.

UPDATE 9/1/12:  The Supreme Court ruled an attorney can't serve as advocate and guardian at the same time.  Go here for more information and links.

Yet another reversal because of prosecutor's comments

Last week a New Jersey appeals court overturned a conviction for attempted murder in part due to the prosecutor's persistent denigration of defense counsel. This is the fourth reversal due to prosecutors' comments I have heard of in about a month. The other three were in Illinois (see here).

In the New Jersey case the prosecutor reportedly disparaged defense counsel and the defendant. The prosecutor also called the defendant a liar, suggested that the defense wasted the jury's valuable time, and closed with a call for the jury to discharge its duty to society. The court concluded that "these cumulative errors by the prosecutor raise grave doubts that defendant received a fair trial." Go here for the full story.

Kansas Supreme Court reverses conviction because of judicial and prosecutorial misconduct

Law.com is reporting that a Kansas man convicted of child molestation will get a new trial because of misconduct by the judge and the prosecutor. The Kansas Supreme Court ruled on Sept. 3 that they each crossed the line during the trial of a defendant, who in 2008 was sentenced to 25 years to life for fondling an 8-year-old girl. The court found that the judge improperly questioned and encouraged the girl while she was testifying and that the prosecutor violated the defendant's right to remain silent in statements made during closing arguments. Go here for the full story.

Illinois Ct of Appeals again reverses conviction because of ineffective assistance of counsel

Last week, I reported that the Illinois Court of Appeals recently announced two opinions in which it reversed convictions based on the deficient conduct of the defendants' attorneys. Surprinsingly, the court has reversed a third conviction in an opinion released today. The case is called People v. Sánchez and it is available here.

In this case, the court concluded that the defendant's attorney had failed to investigate the details of the defendant's prior conviction or that counsel was unaware of the law (which clearly holds that the prior conviction was inadmissible). The defendant's lawyer did not object to the admissibility of the conviction which the court found to support a finding of ineffective assistance of counsel. The court acknowledged that the decision whether to object is generally a matter of trial strategy, but it concluded that there was no valid strategic reason for trial counsel's failure to object to the admission of the defendant's prior conviction.

Arizona lawyer may be in need of an exorcism.... or discipline

To quote Mike Frisch of the Legal Profession blog..."I thought that I had seen just about everything in the area of attorney misconduct, but a hearing officer's report from Arizona proves me wrong..."

Here is the story of a lawyer in Arizona who is facing discipline for her conduct in handling a client's wife's estate. The client's wife committed suicide and the lawyer handled the probate matters. Within days of the death, the lawyer began telling her client that his deceased wife had 'come' to her (the lawyer), that the 'spirit' of the wife was 'inside' her and that she could communicate the wife's thoughts. Before long, the deceased wife made it known that she wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.

Based on these facts, an Arizona Supreme Court hearing officer filed a report on the lawyer's conduct recommending that she be suspended for six months.

Interestingly, though, the report is very careful not to take a position as to an important fact in the case: whether the lawyer was actually possessed by the spirit of the deceased wife. In fact, the report hints at the possibility that it might be true that she was possessed and asserts that the client, the lawyer and other witnesses genuinely believed the lawyer was channeling the deceased wife's thoughts.

This raises an interesting question. If you believe that the lawyer was, in fact, possessed by a spirit, then she was not lying or scheming; she was not in control of her actions. And if that is the case, can you really justify imposing discipline?

Well, you can, but only as to the fact that the attorney tried to deny that she ever claimed to speak for the dead wife. So, she could be disciplined for lying to the disciplinary authorities, but I don't think that is the worst part of her conduct. The clear implication here is that she schemed the whole thing to take advantage of the client. Also, there's the issue of the sexual relationship with the client while representing him. If the court is going to impose discipline for those, I think the court is going to have to make a factual determination as to whether the lawyer was, in fact, possessed or whether she was pretending intentionally or simply delusional.

The hearing officer's report is available here.

UPDATES (October 2010):  Here and here
UPDATE (March 2011): here.

For the third time in less than a month Illinois ct of appeals reverses conviction because of prosecutor's comments

For the third time in about a month the Illinois Court of Appeals has reversed a conviction because of comments made by the prosecutor. The most recent case is called People v Adams and it is available here. For a discussion of the previous two cases go here and here.

In Adams, the prosecutor attempted to argue against the allegation that a police officer planted evidence on the defendant by pointing out that the officer was an 8 ½-year veteran police officer and that it was illogical that he (and another officer) would risk their jobs, their freedom and their reputations over 0.8 grams of cocaine if they had lied about finding the cocaine.

The Court of Appeals found the comments improper concluding that the prosecutor was attempting to bolster the witnesses’ testimony by suggesting that they had more credibility simply because they were police officers. The Court also concluded that the defendant was prejudiced by the comments because the evidence was "closely balanced."

Illinois Ct of Appeals issues two opinions reversing convictions because of ineffective assistance of counsel

Ineffective assistance of counsel is a contention that is often raised by defendants on appeal and in the vast majority of cases it is rejected. Yet, the Illinois Court of Appeals has recently announced two opinions in which it has reversed convictions based on the deficient conduct of the defendants' attorneys.

The first case is called People v Baines and it is available here. It was announced about two weeks ago, although, apparently it is a corrected version of an opinion originally written back in March. If it was announced back in March, I must admit I missed it then, so I am looking at it for the first time.

In Baines, the court concluded that the record was "replete with examples of unusual behavior by defense counsel" and that, thus, it was "evident . . . that there is merit to the defendant’s contention that his representation fell below an acceptable standard."

Among other things, the court found that during his direct examination, it was the defendant who was trying to guide the attorney in how to conduct the questioning in order to elicit relevant information. The court also noted that the attorney elicited from the defendant a damning admission and that "the gravity of the harm caused by this evidence was lost on defense counsel, as he continued to question his own client in a manner which bolstered the State’s case." In the opinion, the court cites the trial transcript extensively and describes the trial in detail to support its conclusion that the attorney's representation was completely inadequate.

In a dissenting opinion, Judge Theis argued that although trial counsel rendered a deficient representation during the course of the trial, the defendant was not prejudiced.

The second case is called People v. Mescall and it is available here. In this case, the court reversed the trial court's judgment dismissing defendant's postconviction petition and remanded for further proceedings on the ground that defendant presented an arguable basis that counsel was ineffective for failing to challenge the trial court's error in imposing mandatory consecutive sentences.

Illinois Court of Appeals rejects argument re conflict of interest in case where attorney represented alleged perpetrator and victim at same time

About a month ago, the Illinois Court of Appeals (Fourth District) issued an opinion in a peculiar case in which a convicted defendant argued he had received ineffective assistance of counsel, among other reasons, because his attorney operated under a conflict of interest.

The underlying incidents upon which the State based its sexual-abuse charges against the defendant in the case and against the other co-defendant included allegations that they engaged in sexual misconduct with each other. In other words, the state's case alleged, at least in part, that the co-defendants were alleged victims of each other.

How could a lawyer represent both co-defendants at the same time? If they were victims of each other, it would be in each person's interest to point the finger at the other, which would make it improper for the attorney to represent them jointly.

Not surprisingly, the co-defendants did not allege either abused the other as part of their defense. And it is precisely based on the fact that the defendants did not point the finger at each other that the court holds now that the attorney's representation did not constitute a conflict.

Am I missing something here? Doesn't this translate into this: the attorney puts himself in a position where he can't make a certain argument because if he does he'd violate his duty to a client - which means he had a conflict - so he doesn't make the argument and then the court says that the fact he did not make the argument shows he did not have a conflict.

I think the lower court should have prevented him from representing the defendants jointly.

The case is called In re Austin and the opinion is available here.

How not to practice law: continue to practice during your suspension

As with pretty much every single other entry in the on-going "how not to practice law" series, all we can say is "duh!"

The Chicago Daily Law Bulletin is reporting today that a disciplinary panel has decided to suspend a Chicago attorney for nine months because he continued to practice law while his license was suspended during 2008.

The lawyer was careful not to go to his office and did not meet with clients, but he hired a young associate who had recently been admitted to the Illinois bar to do the work. The lawyer continued to work "behind the scenes." He contacted the associate and his secretary many times daily, gave instructions, helped with the preparation of the cases, and drafted documents and letters that the associate later signed.

As an aside, did anyone notice that the guy's license was suspended to begin with? I don't know what he did the first time that got him suspended but, let's face it, this is now his second suspension (assuming there are no others). So let's review: The lawyer did something that warranted a suspension. Then he decides to disregard the suspension and continues with his practice, gets caught and admits to the authorities that he had engaged in unauthorized practice of law.... and now he is just suspended again? Why wasn't he disbarred?

And, as a second aside, what about the "young associate"? I am sorry for her, but it should have been pretty obvious to her that she was helping a person practice law in violation of the rules. She should have rejected the job offer. Now she should be disciplined too.

Justice Sotomayor speech

Here is a video of a recent speech by Justice Sonia Sotomayor at the University of Denver Law School. If, for some reason, you don't see the video just below this line, you can watch it here.




Thanks to the Legal Ethics Forum for the link.

Verdict reversed because of plaintiff's lawyer's comments

For the second time this month, the 3rd District Court of Appeal in Florida has issued a reversal because of inflammatory arguments by an attorney. In this case, the defendants admitted liability, but that did not stop the plaintiff's attorney from making arguments to disparage the defendants as greedy, arrogant and callous corporate types who had no intention of compensating the plaintiff for his injuries. In trial, he said the defendants kicked the plaintiff "out on the street like a dog"; complained of "corporate arrogance and corporate greed"; and called defense attorneys "slick talkers." Go here for the full story.

Attorney suspended for billing for more than 24 hours in one day

Go here for the story of an Ohio attorney who has been suspended for two years after it was determined that she billed the court of Lucas County, Ohio for more than 24 hours a day on multiple occasions. She also turned in other bills of dubious nature, including five bills for days of over 20 hours.

Thanks to the Legal Ethics Forum for the information and link.

How not to practice law: make sure you tell the jury the information the judge had excluded

Here is our latest addition to the running list of things you should NOT do when practicing law. As usual, it is an easy one. If the judge excludes certain material from the trial you are NOT supposed to bring it up to the jury.

The Legal Ethics Forum is reporting today on a case called State v. Cifuentes-Vicente, in whcih the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning.

New California Rule on screening

As reported in The Ethical Quandary Blog, the California State Bar Board of Governors has approved a new rule on imputation of conflicts of interest based on ABA Model Rule 1.10, but, oddly, it has opted to let the issue of ethical screening be decided on a case-by-case basis. The Board’s proposed change is now pending consideration by the California Supreme Court.

I guess I have to think more about this one, but my gut reaction is that it is a bad idea. It seems to me that any time you leave things to be decided "on a case by case basis" you run the risk of ending up with more disputes and litigation, inconsistent results, and, more importantly, less guidance as to how to avoid a problem. Specific rules help know what to expect and, thus, how to prepare for a possible problem.

On the other hand, a case by case approach provides flexibility for instances where applying a hard line rule might be unfair. Also, I assume that as case law develops on the issue more specific answers will emerge. Until that happens, though, some clients may have to become guinea pigs, no?

What do you think?

Public defenders and imputed conflicts of interest

The Legal Profession Blog is reporting that the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.

The opinion (Op 2010-5) addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.

The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.

The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”

$2 million dollar sanction for frivolous lawsuit

I have often complained on this blog about inadequeate/lenient sanctions for misconduct. I can't complain today! The Wall Street Journal is reporting that a New Jersey state judge has ordered Paul Weiss and Lowenstein Sandler to pay almost $2 million in legal fees for filing what she considered frivolous suit. Wow! Now that's a big sanction; and by the way, that is supposed to come out of the firm's pocket - not the client's.. In the lawsuit a billionaire plaintiff argued that his father in law had made an oral promise to leave a greater share of his estate to his daughter - the plaintiff's late wife. For more on this story go to the WSJ Law Blog.

Conduct unrelated to the practice of law

Last night we discussed in class how an attorney can be disciplined for conduct outside the practice of law. Interestingly, apparently there is some debate in Australia as to whether this should be the case. Here is a link to an article discussing the issue (via The Legal Ethics Forum).

Debate as to whether foreign lawyers should be allowed to practice law in the US

The ABA Commission in charge of performing a review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments has asked for comment on these two proposals:

(a) to allow foreign lawyers (defined as in existing rules, like the foreign legal consultant rule) to gain admission via a US jurisdiction's in house counsel rule for domestic lawyers (as an ABA Model Rule now envisions), which would enable them to practice in house for their employer/client in the US; and

(b) to allow foreign lawyers to be admitted pro hac vice in a matter at a judge's discretion and with the active participation of US counsel. Recall that one of Conrad Black's trial lawyers at his Chicago federal trial was Canadian as is Black.

Here is a link to a debate on these proposals. In particular take a look at the exchange between Stephen Gillers and Larry Fox.

More information on the Commission including documents, transcripts, articles and posted comments can be found here.

Very unusual sanction

The Legal Profession Blog is reporting today on a bar discipline case from North Carolina that imposes a very unusual limitation on the attorney's practice as a sanction: the attorney was banned from representing female clients.

In this case, it was proven that the attorney had attempted to have sex with clients and had made inappropriate sexual comments to clients. He was suspended for three years, but the suspension was stayed upon compliance with numerous conditions, including that the attorrney would represent female clients.

I have never heard of such a limitation before and I am not sure it is the best idea. Perhaps mandatory counseling or therapy would have been better.

Big law firms in Florida unite to fight new rules on firm websites

Eight large law firms have submitted a 66-page comment to the Florida Supreme Court objecting to Proposed Florida Bar rules for web advertising. Among other objections, the comment argues that the new rules would require law firms to spend millions of dollars redoing their existing sites, could push clients to choose law firms in other states, and violate the First Amendment. Go here for the full story.

California modifies statute of limitation for malpractice claims vs criminal defense lawyers

The California legislature, in what is believed to be the first instance of its kind in the nation, has enacted a law specifically addressed to the statute of limitations for actions by wrongfully-convicted persons against their attorneys. When proof of innocence is an element of the claim, the new law sets the time limit at two years from the date of post-conviction exoneration.

Go to the Ethical Quandary blog for more information.

Ethical issues related to the debate over the NYC Mosque

Here is a link to an interesting discussion on ethical issues related to the litigation over the attempts to build a mosque in New York City.

How not to practice law: pay your employees "under the table"

Here is a new addition to our running commentary on how NOT to practice law. For the most recent updated list of links on this topic go here.

The Legal Profession Blog is reporting today that a Massachusetts attorney has been suspended because he agreed to pay one of his employees "under the table." The Court found that by not reporting to state and federal authorities the income paid to his employee, the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c).

In this case, the lawyer asked his new employee to sign a W-4 form, but the employee said she would prefer not to because she wanted to maintain her MassHealth benefits. In other words, the employee wished to hide her income from the state authorities so that she could continue to receive MassHealth benefits for which she otherwise might not be qualified. Understanding this, the lawyer agreed to not report the employee’s income to the state and federal authorities and paid her weekly in cash for about seven months.

Given that the neat arrangement was a secret between the attorney and the employee, you wonder how did the state find out about the misconduct, eh?

Eventually, the attorney terminated the employee's employment. Given that he had never reported her employment to begin with, she was not eligible for unemployment benefits, but, at her request, the lawyer made the appropriate payments to the state unemployment commission and acknowledged her status as a former employee. It didn't take long for the Massachusetts Attorney General’s Office to put two and two together and the lawyer was hit with a civil penalty of $2,000 and now a suspension.

Three cases on the consequences of improper speech by judges and attorneys

Law.com reported yesterday that an Atlantic County, New Jersey, Superior Court Judge has been hit with ethics charges for allegedly launching into a tirade against an unrepresented family court litigant who complained about a child-visitation schedule he ordered. Go here for the full story. In the complaint, Advisory Committee on Judicial Conduct counsel alleged that the heated invective called into question Baker's ability to remain impartial.

Meanwhile, the Chicago Daily Law Bulletin is reporting today of case in which a convicted murderer has asked the Illinois Supreme Court to order a new sentencing hearing because the sentencing judge called him a derogatory term for gay men in court before sentencing him to more than a century behind bars. In his petition for leave to appeal, the defendant contends that the utterance of the derogatory slur used to describe gay men was "indicative of the sentencing judge's abandonment of impartiality in the sentencing process."

Finally, Law.com reported a few days ago (here) that a Florida state appeals court has thrown out a $1.4 million jury verdict because of "inflammatory and prejudicial comments" made in court by the plaintiffs attorney. Go here for the court's opinion. The Court concluded that the attorney engaged in "improper litigation tactics" that went well beyond "partisan zeal" and that "indisputably require reversal."

Another opinion on whether a conviction should be reversed because of prosecutor's comments

A few days ago (here), I commented on a new case in which the court reversed a conviction because of comments made by the prosecutor. Now comes another opinion from a different division of the appellate court in which the court rejects a similar claim. This new case is called People v Chester and is available here.

Are the cases consistent? You be the judge.

In the case that reversed the conviction, the court found that the prosecutor's remarks were offered to draw the jury’s attention to defendant’s decision to exercise right not to testify. Here is what the prosecutor said:

“Have you heard any evidence that he didn’t know they were the police?” . . . “You didn’t hear anything from that witness stand. You didn’t hear any evidence that he didn’t know they were the police."

In the case announced today, the court found that at least part of the prosecutor's statement was improper, but then concluded taht the error did not deny defendant a fair and impartial trial. Here is what the prosecutor said:

"What did the defendant do? Well, we have heard testimony from the officer and the officer testified hasn't been refuted or questioned in any way, you haven't heard any other testimony to refute what the officer said ..."

WSJ article on lawyer suicides

In the wake of the July 15 suicide of partner in the Chicago firm Reed Smith, the Wall Street Journal Law Blog has published a short article and a summary of this article from "American Lawyer" by Steven Harper, a former Kirkland & Ellis partner turned blogger and adjunct professor.

Unfortunately, suicides among lawyers are not rare. In fact, a report distributed at the annual meeting of the ABA Center for Professional Responsibility last May states that lawyers suffer depression, commit suicide & abuse alcohol and drugs at approximately twice the rate of the general population.

Illinois Court of Appeals reverses conviction because of prosecutor's comments

Just about a month ago, the Illinois Court of Appeals (4th division) issued an opinion in which it took the unusual step of reversing a conviction because of certain comments made by the prosecutor during summation. The case is called People of Illinois v Roderick Smith and it is available here.

In a key passage of the opinion, the court concludes:

In this case, . . . we see no purpose for the prosecutor's remarks other than to draw the jury’s attention to defendant’s decision to exercise his federal and state constitutional right not to testify . . . By overruling defense counsel's objections, the trial court in effect permitted the jury to infer defendant's guilt from his failure to present evidence in his own behalf.

I have in the past criticized the court for giving prosecutors "a pass" on conduct like this (see here). I am glad to see the court took a different approach to the issue this time around.

On the difficulty of imposing consistent sanctions, again

Law.com is reporting today that a nine-member District of Columbia Court of Appeals Board on Professional Responsibility has issued a split recommendation on sanctions for the misconduct of a former assistant U.S. Attorney for the District of Columbia. Four members recommended disbarment, three recommended a three-year suspension, and two recommended a one-year suspension. Because none of the recommendations was in the majority, the final decision will be up to the D.C. Court of Appeals. For a copy of the the board’s report and recommendation go here. For the full story from Law.com, go here.

Sanctions for conduct outside practice of law

What sanctions would you impose for the following conduct?

"Lawyer X left work, consumed alcohol, then fled from the police and ran eight red lights and stop signs while exceeding 100 mph. He then intentionally rammed another vehicle occupied by others in an attempt to cause great bodily injury, and fled the scene of the collision without stopping. Eventually, Lawyer X pled guilty to felony evading while driving recklessly, misdemeanor driving under the influence of alcohol/drugs, misdemeanor hit and run with property damage, and an amended felony charge of battery."

In the actual case, Lawyer X was suspended for one year and one day. What do you think: too much, too little, just right?

Florida case asks whether inadequate funding of public defender's office results in violation of consitituional rights; Michigan says no.

Here is a link to a comment posted in the Crim Law Prof Blog discussing State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010), a case to be heard by the Florida Supreme Court that asks whether the limitations imposed by inadequate public funding of a Public Defender's office results in a violation of the constitutional rights of the defendants the PDs represent.

In this case, the Public Defender's office of Florida's 11th district asked the court to be relieved of its obligation to be appointed to represent all future non-capital felony cases because the office's inadequate funding resulted in such an overload of cases for each individual lawyer that they felt they were not able to comply with legal and ethical duties to the clients. The lower court granted the request and the case is now under review.

Interestingly, the Missouri public defender's office has also decided not to take any new cases (here).

In a similar case, the Michigan Supreme Court recently reversed itself and threw out a lawsuit that was aimed at holding the state responsible for failure to provide adequate funding to hire lawyers for poor people accused of crimes. Go here for that story.

Thanks to the Legal Ethics Forum for the information.

Proposed new rules re online advertising criticized in Florida

The ABA Journal.com is reporting that "[s]tringent new Florida Bar rules on attorney online advertising have ignited a firestorm, attracting criticism from a sweeping array of groups," including law firms, the American Civil Liberties Union and the FTC. Go here for the full story.

UPDATE: 7/11/10: Here is a story from Law.com on how Florida's largest law firms are starting to band together to protest the regulations, largely on First Amendment grounds.

Fools for clients....

Have you ever heard the expression "a lawyer who represents him or herself has a fool for a client"?

Here's a new Ninth Circuit case that puts a slightly different spin on the notion of fools for clients even though they were not lawyers. In US v. Johnson, the trial judge conducted a hearing and "practically begged [the defendants] to accept counsel but they refused." The court then concluded that "[t]he record clearly shows that the defendants are fools, but that is not the same as being incompetent."

Thanks to the Legal Ethics Forum for the information and the link to the opinion.

Sanctions for improper comments before the jury and conduct during trial

Last month a jury awarded $8 million in compensatory damages (see here) in a case against pharmaceutical company Merck in a trial related to injuries caused by its prescription drug Fosamax.

Today, Pharmalot is reporting that the plaintiff's attorney is facing sanctions for his behavior during the trial and certain comments during closing arguments. The court's order imposing the sanctions is availble here.

The order states that “[d]uring the trial of this hard fought case, Mr. Douglas repeatedly acted in an inappropriate manner before the jury and made several improper and/or factually incorrect arguments in summation after having been admonished.” Among other things, the order states that the attorney claimed the FDA has an “incestuous” relationship with drugmakers and offers cursory reviews and expedited approvals “in exchange” for funding, a reference to the user fees industry pays the agency.

Quite frankly, I don't have much of a problem with that statement.

But the story does not end there. There were other, more important, problems such as the fact that, according the the report, the attorney "misstated a report submitted as evidence by Merck; mentioned punitive damages when he wasn’t supposed to do so; improperly injected his own opinion concerning the evidence and improperly referred to adverse event reports." Some of these are clearly violations of duties in ABA Model Rule 3.4.

In addition, the order states that the attorney engaged in improper conduct for “repeatedly disparaging defense witnesses and generally acting rudely to defense counsel in a manner that cannot be fully captured in the record: using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing, and admittedly ‘fooling around’ and ‘making fun.’”

How not to practice law update

Here is an update on the how not to practice law list so far (each item is a link to its own post/story):

ask client to pay fees with drugs

insult the judge (preferably in writing)

write a bad brief

don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)

if you make a mistake, lie to cover it up

pay your bar dues with a check from your client's account

convince clients to give you title of their house so they avoid foreclosure, then get them evicted

let the client dictate (bad) strategy

ask client to pay fees with sex

park in the handicapped parking spot

lie

get married when you are already married

show up to court drunk

have affair with married woman, then agree to represent her husband in divorce

when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

try to recover expenses from your client after you agreed not to do it

provide the wrong citation to key cases so the judge goes nuts trying to find them

try to blackmail your opponents to get what you want

lie to the judge

take more work than you can handle

lie to the disciplinary committee

forge the judge's signature

ask for stolen property as payment for your services

rob a bank

be rude to the judge's clerk

don't proofread anything before you file it in court

How not to practice law: ask client to pay fees with drugs

Here is a new addition to my on-going list of real stories that illustrate some relatively simple/straighforward things you should not do... or, as I like to call it, my how not to practice law examples.

The Legal Profession blog is reporting today that a laywer in California has been suspended for two years after he was convicted of one count of felony cocaine possession after it was shown that he accepted crack cocaine from a client as payment of a $175 bill. To be reinstated, the lawyer will also have to show he successfully completed a rehabilitation program and will have to pass the MPR Exam again.

Georgia does not invalidate certificate of merit requirement; Washington does

A few days ago, I argued against rules that require a plaintiff in a malpractice action to file a "certificate of merit" with the complaint. See here. The Legal Ethics Forum is now reporting that the the Supreme Court of Georgia has joined New Jersey in recognizing the validity of this type of requirement. The case is called Walker v Cromartie and it is available here. The court rules that it's not unconstitutional for the state to require professional malpractice plaintiffs (even indigent ones) to file expert declarations with the complaint.

Interestingly, this news item comes at the same time it is being reported that the Supreme Court of Washington has ruled a 90-day notice requirement in medical malpractice cases unconstitutional. The same court struck down the certificate of merit requirement last September. Seattlepi.com has the story. (Thanks to the TortProf Blog for the info and the link.)

More comments on the issue of privilege and the unlicensed attorney

Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.

Can client claim privilege if client does not know his attorney is not licensed? -- UPDATED

A federal court magistrate in New York has decided that information shared with someone the client mistakenly thought was a licensed lawyer is not protected by the attorney/client privilege.

In this case, a trademark infringement claim by Gucci America Inc. against Guess Inc., Guess sought discovery of Gucci's communications with its in-house counsel Jonathan Moss, who was not licensed to practice law in any state at the time. He had been a member of the California bar until 1996 or 1997, but then became inactive. Gucci claimed the communications were protected by the attorney-client privilege but the magistrate disagreed.

In his order, the magistrate states that Gucci cannot "cloak itself under a veil of ignorance" to avoid handing over to a competitor communications with its former chief in-house counsel and held that Gucci could not justify its "mistaken belief" since the company "was plainly in a position to confirm the extent of [Mr. Moss'] qualifications as a legal professional and failed to do so."

Over at the Legal Ethics Forum Prof. Stephen Gillers argues that the decision is wrong because arguably "Gucci officers acted reasonably. The fact that they could easily have discovered [the lawyer's] inactive status (stressed in the opinion and by Guess?) doesn't mean they were unreasonable in accepting that he was a lawyer under the facts of the case. And a lawyer can be inactive one place and active elsewhere."

I agree with this, up to a point. It depends on what the client knew and when. If they knew the guy was not an attorney and confided in him anyway, I don't think the client has a right to then claim the privilege. But if they were, as Prof. Gillers points out, reasonable and really did not know of the attorney's inactive status, I would agree the client should be given the benefit of the privilege. Remember that the attorney client relationship can arise out of a misunderstanding - when the client believes there is a relationship because the attorney was not clear about whether he or she would accept the representation. (remember the Togstad case?)

Following that same line of reasoning, a client should be allowed the benefit of the relationship (the privilege) if the client reasonably believed the attorney was an attorney and that they (client and attorney) had a professional relationship.

Now that the real status of the lawyer is known, another question arises. What if the court takes the magistrate's recommendation and rules against Gucci; can Gucci sue the attorney for malpractice for having hurt Gucci's case because he was negligent in handling his licensing requirements. And, if so, can the attorney claim comparative negligence because Gucci failed to institute a policy to check on the licensing status of its in-house attorneys?

The magistrate's order is available here. For more on this story go to Law.com.

UPDATE #1 (July, 2010): Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.

UPDATE #2 (Jan 2011): The magistrate's decision holding that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege was overturned.  See here.

Georgia Supreme Court reverses conviction and asks lower court to determine validity of state's public defenders system

In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel. More on this story on Law.com and the Legal Ethics Forum.

Suspension for insulting the judge

It is unfortunately no secret that not all judges are competent or fair. It is not uncommon to read opinions disciplining judges or allegations of corruption. Yet, what is the best way to deal with the situation? How should a lawyer appearing before a court address a problem with the judge? That is a very difficult question and not an easy decision to make. Sometimes an attorney must react even if it means risking being found in contempt. But there are obvious risks involved. Tread carefully.

Here is an example. The Legal Profession Blog is reporting today that the Illinois Review Board has recommended a six-month suspension for an attorney who made disparaging remarks to a judge. The attorney apparently was angry about the judge's decision to summarily place a fourteen year old child with someone he (the lawyer) claimed to be an addict. In a letter to the judge, the lawyer stated that "As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?"

Although portions of the letter are improper, I am not sure I would have imposed a six month suspension for it. Unfortunately, this was not an isolated incident. The lawyer reportedly also insulted administrative law judge in a different case.

The opinion is available here.

Improper comments?

The following two paragraphs are from actual statements made in Cook County Court in Illinois. Are they examples of acceptable, harmless rhetoric or should they be considered improper?

The word ‘strict’ in the phrase ‘strict liability’ does not mean anything it is just a name! It is created to intimidate people, it is self-made invalid authority, it is meant to implant in people undeserved and unjustified respect to the ordinance built on fear and misunderstanding but empty inside and not applicable in my case.

-------

Robbery, it is a good business as it is something for nothing – a pure gain. Germans do not do it anymore after their discouraging experience 65 years ago (1945) as it is too dangerous now and people are watching them. Therefore they retreated to more subtle ways such as cheating, lying and acting dishonestly under the cover of law, usually as lawyers, exploiting us on this way.



Thanks to On the Record in Cook County for the quotes

NLJ editorial on the need to expand legal aid services

"With the legal needs of the poor rising in volume and intensity, more access to legal aid is a needed stop on the road to economic recovery." This is the start of an editorial published today in the National Law Journal online, available here.

More on the Supreme Court's decision in Holder v. HLP and possible constraints on attorney advice

Yesterday I said I would continue to update the list of links to comments on the recent decision by the Supreme Court in Holder by simply adding them to a previous post. But I want to point out a particularly interesting one here.

In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.

She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."

On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[r]estricting … attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.

I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.

It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.

Sentencing hearing video

Last May, I came across this video just as it became public over the internet. I mentioned it in class briefly because it raises many interesting questions but, unfortunately, I did not have enough time to discuss it in detail.

The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.

When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.

One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.

The issues I think the video allows me to explore are these:

The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)

This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.

I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?

Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")

Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?

Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.

If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.

Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):




PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....

More comments on yesterday's US Supreme Court opinion

Here are two more links to comments on yesterday's Supreme Court Opinion upholding the criminalization of "material support." I will keep adding links to this post if I see more from now on.

Go here for a comment by Jonathan Turley, in which he makes the following very interesting point: "Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts."

For more coverage of the case go to:

The New York Times

Law.com

Room For Debate (NY Times)

The Wall Street Journal

Blog of the Legal Times

Wall Street Journal law blog

PBS segment on yesterday's Supreme Court's decision

For a transcript of this segment, go the PBS newshour website.

NY Times publishes debate on today's Supreme Court decision on criminalizing advocacy

The New York Times.com's "Room for Debate" section has just published three short Op-ed pieces debating today's Supreme Court decision on the constitutionality of a statute criminalizing advocacy for certain groups. The pieces are by David Cole (Georgetown University Law Center), Richard A. Epstein, (University of Chicago Law School) and Stephen I. Vladeck (American University Washington College of Law). Cole sets the stage by stating that "[f]or the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity." Go here for read the three articles.

Panel discusses inadequacy of legal services for the poor

The Blog of the Legal Times is reporting that last week a panel of legal experts at the American Constitution Society’s annual conference discussed the question of how to improve the indigent defense system. Stephen Bright, president and senior counsel at the Southern Center for Human Rights in Atlanta, Ga., outlined a series of problems facing the criminal justice system including a lack of a “true adversarial system” in many parts of the country, ineffective indigent defense programs, the use of the process to punish people unduly, and “no real way to put a check on the process.” In response, Laurence Tribe, the former Harvard law professor who in February was selected to lead the Justice Department’s newly formed Access to Justice initiative, argued that the answer could in part come from big law fimrs pitching in more frequently on a pro bono basis. Go here for more on the story. Given that we have always expected and encouraged "Big Law" to contribute pro bono services, I am not sure I would count on this as the solution to the problem.

Also, as an aside, it is comments like the ones by Tribe that remind me why it is upsetting to me to see that some states (like Illinois) are actually eliminating the rule that encourages pro bono services from their Rules of Professional Conduct.

Attorney suspended for disclosing confidential information in order to secure custody of child

Last week, the Legal Profession blog reported on an interesting case that shows that there are severe consequences to the disclosing confidential information, even if it is done with good intentions. The case also demonstrates once again, how becoming personally attached to a client can cloud an attorney's good professional judgment.

In this case, an attorney represented a client in a divorce. During the course of the representation, the attorney learned that the client was a drug user. Nevertheless, he began an intimate relationship with the client and began to act as a "de facto father" to the client's daughter.

Some years later, while still counsel of record for the client, the attorney filed a petition for custody of the daughter under the same court number as the divorce action. As part of this process, the attorney disclosed the confidential information about the client's drug use.

The attorney's intentions were good. He disclosed the information out of concern for the daughter's welfare. However, his conduct was a violation of his duty to the client.

Based on these facts, an Arizona hearing officer has recommended a six-month suspension and one year of probation.

NJ court holds plaintiff is required to file a "certificate of merit" in order to file a legal malpractice action.... Bad idea

Last week the New Jersey Appellate Division held that a plaintiff in a legal malpractice action is obligated to serve a timely affidavit of merit on attorneys as part of the process in a legal malpractice claim. New Jersey has a statute that requires filing such a certificate in cases against a number of professions but it defines "attorney" as a person licensed to practice law in the state of New Jersey. In this case, at least some of the defendants had provided legal services from offices outside the state and were not admitted in New Jersey. The case is called Lacrosse v. Klehr, Harrison, Harvey, Ranzburg, Ellers, LLP, and is is available here.

The court only imposed the requirement prospectively, however, because prior state case law was unsettled and federal decisions on the subject attempting to apply New Jersey law had taken arguably different approaches.

My problem with this is not the holding in this case in particular but with the notion that a plaintiff should be required to file a certicate to begin with. The court here was simply deciding whether the terms of a particular statute applied to the facts of the case. I just don't like the statute.

I think the requirement of a certifcate of merit is a bad idea for the same reason I think requiring certificates of merit in medical malpractice cases is a bad idea. In fact, I have stated before that if forced to choose between caps for damages and certificates of merit requirements I would have to support caps.

Both caps and certificates of merit requirements are popular "tort reform" measures, which, as all such measures, are looking to do one of two things: either to make it more difficult for victims to get compensation (by making it more difficult for them to get to court) or, if they can get compensation, to reduce the amount of money they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former.

It is, admittedly, a close call as to which would be worse for victims, but I am leaning towards saying that the certficate requirements are worse. With the cap, at least the victim does get some compensation and, as long as the cap is generous, many plaintiffs may not be affected. Of course, those who would be affected would be precisely those who need the compensation the most - those who suffer catastrophic injuries - but I as I said, I am being forced to choose between bad choices and with this one at least the victims get a chance to get something.

In contrast, the approaches to reform that seek to make it more difficult for victims to find representation, to find expert witnesses willing to certify their claims, and to make it more difficult to file claims to begin with, if successful, leave the victims with no recourse and no recovery at all.

Thanks to the Legal Profession Blog for the information. For more on the case go to Law.com.

Supreme Court upholds limits on advocacy for certain groups

The US Supreme Court has announced today its decision in Holder v. Humanitarian Law Project, upholding the federal law that bars "material support" to groups designated as "foreign terrorist organizations," including advice or advocacy for nonviolent, peaceful, lawful ends.

I a very long opinion that I have not had a chance to read yet, the Court ruled 6-3 that the government may prohibit all forms of aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities. Justice Stephen Breyer wrote a dissenting opinion (joined by Justices Ginsburg and Sotomayor) in which he rejects the majority's conclusion "that the (U.S.) Constitution permits the government to prosecute the plaintiffs criminally" for providing instruction and advice about the terror groups' lawful political objectives. The full text of the opinion is available here.

Thanks to Renee Newman Knake of the Legal Ethics Forum and to Law.com for the news and links. For more on the opinion check out this article in the Wall Street Journal. See also the Blog of the Legal Times and the Wall Street Journal law blog.

How not to practice law: write a bad brief

Here is the link to a good short article on how to wrire a bad brief. It is called Writing Bad Briefs: How to Lose a Case in 100 Pages or More.

In includes great advice, such as:

-do not pick the more important issues and arrange them in order of strength; instead discuss as many issues as you can think of and arrange them alphabetically

-mistate the law or, even better, make it up

-citations are lame and a sign of weakness

-attack the court, opposing counsel, and your adversary with insults, condescending language, snide remarks, irony, and humor

-bury the bad stuff; concede nothing; fight to the end, especially on the little things that don’t matter

-be superficial

... and more.

Information, links, briefs and more on Connick v. Thompson

Last March I reported that the US Supreme Court has agreed to review Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit affirmed a $14 million award for a wrongful conviction in a murder case. Here is the link to the Supreme Court WIKI page on the case which has links to pretty much anything you need to research the case: the briefs, the opinion of the lower courts, the cert petition, background information and more. This page gets updated with more links as the case progresses so save the cite and check it frequently if you are interested in this case.

Lawyer sleeps with client's wife.... no breach of fiduciary duty says the Court

Would it be a breach of fiduciary duty for a law firm partner to have a sexual relationship with his client's wife? Not according to the Supreme Court of Mississippi! The court's opinion is available here. More on the story here and here.

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

New proposals to facilitate limited representation in Illinois

There is a lot of talk about the concept of "unbundling" of legal services these days. Unbundling usually refers to an agreement in which the attorney agrees to help the client with a distinct and limited task. For example, the attorney would agree to review a document that the client will use to negotiate a deal by himself. The attorney's representation in such circumstances is "limited" to reviewing the document; not to negotiate for the client, not to represent the client in any proceeding, etc. Just reviewing the document. For everything else, the client is either on his or her own or will rely on other lawyers.

Much of the recent discussion about unbundling attempts to spin the notion of providing limited representation as an attempt by lawyers to provide some access to legal representation to people who could not otherwise afford to hire the lawyer to represent them in all aspects of the case.

The problem I am having with all this is that we have always known the vast majority of the legal needs of the poor are not being met AND we have always had the ability to limit the scope of representation. There is nothing new about this. (See Rule 1.2 and its comment.)

So why all of a sudden are lawyers so worried about the needs of the poor? The "negative" answer is, of course, that it is because the economy is bad and so many lawyers are desperately seeking clients; which means lawyers are more willing to do little things for people they would normally not want to represent because lawyers need the money.

This was the underlying debate in the discussion on "ghostwritting" I posted recently (here and here). The underlying question was whether an attorney who writes a court document for a pro-se litigant should be required to disclose (in the document) that the lawyer helped the client prepare it. A recent ethics opinion in the state of New York concluded that attorneys could remain incognito. In response it has been said that anonymity can result in abuses and in lawyers taking advantage of the clients they are supposedly trying to help by unbundling the services. As one blogger put it "the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don't know better."

This debate is now before the Supreme Court of Illinois. It is considering some proposals to amend certain rules to regulate limited representation in the state. The proposals are available here.

Interestingly, the proposal regarding "ghostwriting" is the opposite of the view adopted in New York. The proposal reads as follows:

An attorney may assist a self-represented person in preparing a pleading, motion, or other paper. The self-represented person shall sign the pleading, motion, or other paper, and on the signature page the attorney shall insert the notation "Prepared with assistance of counsel under Supreme Court Rule 137" followed by the attorney’s name, firm, or organization name (if any), business address, and phone number. This notation does not constitute either a general or limited appearance by the attorney. An attorney providing assistance may rely on the self-represented person’s representation of facts without further investigation by the attorney, unless the attorney knows that such representations are false. ...

Prosecutors seek to vacate sentence admitting to "inadvertent nondisclosure"

In yet another example of either misconduct or negligence by prosecutors, the Blog of the Legal Times is reporting that federal prosecutors want a prison sentence vacated and the indictment dismissed by the U.S. Court of Appeals for the D.C. Circuit because of what they call an “inadvertent nondisclosure” of potentially impeaching material about the defendant's statement to police. Go here for a copy of the prosecution's three-page motion. For many more stories regarding prosecutorial misconduct over the last year and a half go here.

Can flat fees be non-refundable?... again...

As you probably know, the basic standard to determine if a fee is ethical is that it must be "reasonable" and typically the rules of professional conduct (or its comments) will provide a list of factors to consider when trying to determine if a fee is, in fact, unreasonable. Interestingly, one factor usually not mentioned is whether the fee is "non-refundable."

Can an attorney charge a non-refundable fee or would that be, by definition, unreasonable. Given the state of things, the accurate but not very helpful answer has to be: that a non-refundable fee is OK as long as it is not unreasonable. Not very helpful, is it?

Not surprisingly, thus, there has been a lot of debate as to whether attorneys can charge non-refundable fees. I recently posted a comment on this here.

Enter the Missouri Advisory Committee on Professional Responsibility, which just about a month ago issued a new opinion on the matter in which it concludes that non-refundable fees are to be considered unethical in Missouri. (Go to the Ethical Quandary blog for more).

Saying that non refundable fees are just not allowed sounds simple enough, but, in reaching the conclusion the Committee makes a number of mistakes and I am not sure that the end result is justified.

The Committee starts by stating that there are "two types of cases [that] provide good examples of situations in which supposedly nonrefundable fees are involved." The first example is a case “where the client pays a flat fee or makes an advance deposit on fees against which the attorney will bill on an hourly basis."

Here is the first problem. An "advance deposit" such as the one described is what other jurisdictions typically call a "security retainer" which can never be non-refundable. There has never been any debate about this.

If we take this "example" out of the equation, what is left is what the Committee calls "a flat fee."

From here, the Committee points out that a "flat fee" is not earned automatically when agreed to. The fee is only earned when it is, well, earned, and it is not until then that there is an obligation to pay it. There is a certain obvious logic to this reasoning but it still does not explain when the flat fee is actually earned other than to state that the fee is earned when the representation is completed.

If the representation ends before the representation is completed, however, the Committee states that the attorney must analyze the factors set out in the rule regarding fees "to determine the extent to which the attorney must refund all or a portion of the fee."

In other words, the attorney must determine if not refunding the fee would result in an unreasonable fee or as the Committee explicitly states it: "because an attorney may not charge or collect an unreasonable fee, the attorney must determine that the fee was reasonable."

And so we are back where we started... is a non-refundable fee unreasonable? Only if we determine that it is.

In the end, I am afraid this analysis adds nothing and clarifies little. The Committee essentially concludes - without stating it - that a flat fee has to be analyzed just like the "advance payment" described in the beginning of the opinion (aka a "security retainer") which has never been allowed to be non-refundable. After reading the opinion, all we know is that you can't call the fee non-refundable, that you can call it "flat," that it can't be unreasonable and that in some cases (but not others) not refunding part (or all) of the fee would be unreasonable. Nothing new there.

What would be new, I think, is to consider whether allowing non-refundable flat fees in some cases might actually be a good alternative to other forms of fees. I discussed this issue here.

You can find the full text of the opinion here.

One final note of interest: the Committee explicitly discourages attorneys from using the term "retainer" from now on because "the term has taken on many meanings which are inconsistent with one another and which are confusing to clients." And, in support of this conclusion, the Committee cites Dowling v. Chicago Options Associates, Inc., 875 N.E.2d 1012, 1018 (IL 2007), an Illinois case, that I have long argued makes little sense... but that is another story....

For more on the Missouri Advisory Committee opinion go to the Ethical Quandary blog.

Three new TV shows (with trailers)

With the recent demise of the original "Law & Order" and "Raising the Bar," the major networks are apparently feeling the need to introduce new law related shows. Here are the trailers. One is called "Outlaw" about a Supreme Court Justice who decides to retire and go into private practice. Another is called "The Defenders" and is about a pair of criminal defense lawyers. The third one is "Harry's Law" about people brought together by fate to form a law firm.

I enjoy watching law related shows and movies and reading "legal thrillers" as much as anyone, but I often wish they were much better than what they usually are. I will give all of these a chance but from what I can see in these trailers at least two of them appear to be based on tired old stereotypes: either every client is innocent (Outlaw) or criminal defense lawyers are sleazy (The Defenders), aside from the fact that apparently all lawyers are young, beautiful, fit, sexy and have lots of sex in the office and law libraries. Outlaw also seems to have the stereotypical "team" of characters (common to so many "heist" type movies): the outlaw, the rebel, the intellectual, the smartass, the computer genius, etc. If they add a demolitions expert maybe they could compete with the A-team. The Defenders looks like it might be more of a comedy "detective" show; more about trying to figure out "who did it" than about legal issues.

Harry's Law seems to escape the mold - or at least part of it. This one is produced by David E. Kelley, producer of three relatively successful law related shows. The trailer has some pretty funny lines and Kathy Bates is always entertaining. But, given that I didn't like any of the three previous David E. Kelley shows, I will have to wait and see...

But I am getting way ahead of myself. Let's give them all a chance.... Maybe they will last longer than the last few attempts ... Does anybody remember "Shark" or "Eli Stone"?

No incentive for lawyers to act properly

In one of today's sessions at the annual conference of the ABA Center for Professional Responsibility we discussed cases of misconduct in the process of litigation - both during the pre-trial process and the trial itself. After illustrating many instances of misconduct with cases from the last 12 months, we discussed the possible reasons for the many reported instances of misconduct and there seemed to be some consensus that courts are not doing enough to discourage improper conduct.

Here is a recent example. Pharmalot is reporting that a federal court judge has imposed sanctions on Novartis for misconduct in the process of discovery. However, when I read the judge's opinion (here) what I see is a little different.

In this case, Novartis asserted it did not have any direct to consumer ads to produce during discovery because it never ran any direct to consumer ads. After plaintiffs lawyers found examples of ads in a magazine distributed to cancer patients, the company claimed they had not been produced because those ads were what it called "direct-to-patient ads" (as opposed to direct to consumer ads; see the difference?).

The plaintiffs asked the court to impose sanctions and to mandate the payment of attorney's fees. The Court granted the request for attorney's fees, but denied the imposition of sanctions.

The Court found that the distinction between "direct to consumer" and "direct to patient" ads was misleading concluding that "[t]here is no logical separation between consumers and patients in this context. The target market for these limited-use drugs is cancer patients and cancer patients are the consumers of Novartis products.”

The judge, however, denied the requested sanctions finding that there was no showing that the defendant "deliberately withheld" the documents in question. Apparently, the defendant had, in fact, produced one copy of a magazine which contained an ad as part of its first production of documents.

It seems to me the court did not really think this one through. The facts of the case show that the defendant drugmaker affirmatively denied the existence of relevant ads (in deposition testimony) while at the same time apparently produced one example of such an ad in a production of documents. When exposed with more ads found independently by plaintiffs' counsel, the defendant changed its legal claim to attempt to justify its initial denial of evidence it is now clear it knew existed.

These facts suggest to me there is more to the story and the court is not doing anything to find out. I think the court should have tried to determine if, in fact, the defendant had acted with intent to withhold the information in order to decide whether to impose sanctions. I think the facts suggest at least a possibility that it did. One question I have is how come the first magazine ad went undiscovered if it was in fact provided in response to a production of documents request. Was it perhaps because the production was an attempt to bury it within tons of other documents? If I had been the judge, I would have liked to find out about that before denying the requested sanctions.

The court did not call for an evidentiary hearing and simply said there is no evidence to suggest misconduct. In doing so, it gave the defendant (and its lawyers) a pass.

This is all reminiscent of Washington St. Phys. Ins. Exchange & Ass’n v. Fisons Corp, 858 P.2d 1054 (Wash. 1993), in which the court imposed financial sanctions for somewhat similar conduct.

In neither case, though, were the attorneys disciplined.

Essay on the prosecutor who "threw" the case

My students will remember the story of the prosecutor who decided to surrepticiously help the defendant's lawyer win a case because the prosecutor had doubts as to his own case. Here is a link to an essay on the case by Professor David Luban of Georgetown University.

Thanks to Legal Ethics Forum for the link.

Illinois Supreme Court finally decides case of lawyer who tampered transcripts to get a job

Back in January I posted my criticism of the Illinois Review Board's decision to recommend only an 18 month suspension in a much-publicized case involving a lawyer who lied on his law school application, plagiarized a paper while in law school and altered his transcripts to give himself better grades in 20 courses in order to get a job in a big firm. For my discussion on the case go here, here and here.

Today, I am pleased to report that the Illinois Supreme Court has shown some common sense and ignored the recommendation. It has decided to impose a three year suspension. I, of course, would have voted to disbar the lawyer, but that is another story. For more on the story go here and here.

ABA Conference of the Center for Professional Responsibility

I am currently in Seattle participating in the annual conference of the ABA Center for Professional Responsibility. This morning I attended a very good panel on whether the rules should be amended to allow screening for concurrent conflicts of interest situations. Eventually, I will post some of my thoughts on this, but if you want up to the minute news you can go to the Legal Ethics Forum where Rob Vischer is blogging "live" (or close to it). Here is the link to his first report; here is the link to the second one. After that you should go to the main link to the Forum and scroll down.

How not to practice law: don't ever read anything before using it

I have been away from the blog for some time while grading exams and doing some traveling but I will get back to it regularly soon. Meanwhile, here is a new entry to in our on-going list of things that help us describe how NOT to practice law, In this case, though, the end result fortunately for the lawyers involved is not discipline but embarrasement.

This is the tale of a law firm that scanned a certain deed to a piece of property to include the information in a foreclosure notice for publication in a local newspaper. Apparently, no one - either at the firm or the newspaper - read the notice before it was published. It read as follows: “The said land shall not be sold, leased or rented to any person other than of the Caucasian race.”

After a complaint was filed with the Massachusetts Commission Against Discrimination, the statement was removed from subsequent editions of the newspaper and both the law firm and the newspaper issued appologies.