Trivia I learned today

Here is a little bit of interesting trivia I learned today: William Marston (the “father” of the modern day polygraph), is credited as the creator of the systolic blood pressure test used in an attempt to detect deception, which became one component of the modern polygraph. Under the pseudonym Charles Moulton, he created “Wonder Woman” whose magic lasso requires those bound by it to tell the truth. For more information on comic books and law go to the Abnormal Use Law Blog. Most Fridays, they feature a classic comic book cover with a law related theme.

How not to practice law: be a pimp

The Legal Ethics Forum is reporting that a Minnesota lawyer has been disbarred after being charged with six felony counts of promoting prostitution. According to a news report, the disciplinary complaint alleges the 66-year-old lawyer set up appointments for prostitutes with men. It is not clear whether he was seeking prostitutes for his clients or whether he was seeking clients for his prostitutes. For more on the story (although there isn't much) go here.

How not to practice law: charge $3,500 an hour AND be rude to the judge

Here is a double dose of how not to practice law. The Legal Profession Blog and National Law Journal are reporting that the Supreme Court of Kansas has disbarred a Kansas City attorney for charging $3,500 an hour to handle a case and for making offensive remarks to a judge and court staff.

I have to say... charging $3500 an hour is pretty unreasonable and to then go and insult the judge and the court's staff on top of it... yeah, that's pretty dumb; and dumb conduct is a recurring theme in the "how not practice law" series, ....isn't it?

Go here or here for the full story.

Thanks to Carly Toepke for the link.

How not to practice law: Plagiarize

In my class we discuss the case of In Re Lamberis in which a lawyer is disciplined for plagiarism in a (non law related) master's thesis. I use the case to illustrate the facts that (a) a lawyer can be disciplined for conduct outside the practice of law and (b) plagiarism is a very serious offense that the law school will not take lightly.

The Legal Profession blog is now reporting on a case in which the Iowa Supreme Court has imposed a public reprimand of an attorney who was found to have plagiarized in two briefs filed in a bankruptcy matter. Apparently, the bankruptcy judge had found that the briefs in question were of "unusually high quality" and directed the attorney to certify that he was the author. The judge's hunch was correct: the reason the brief was of such high quality was that the lawyer had lifted 17 pages virtually verbatim from a law review article . In response to the order, the attorney admitted that he had exceeded permissible use of a source. Go here for a copy of the decison.

This is the first case I have seen of discipline for plagiarism in a brief.

Thanks to the Legal Profession blog for the information.

Illinois Increases Ethics CLE Requirements

As of October 1, 2010, the Supreme Court of Illinois has amended its MCLE Rules to increase the number of required professional responsibility credits to a minimum of six hours. This amendment does not change the total number of CLE credit hours required to be reported for compliance, only the proportion of which must be devoted to areas of professional responsibility.

Thanks to the Ethical Quandary for the information.

How not to practice (criminal defense) law

Straight from the Legal Profession Blog:

"If you are a law professor looking for a teaching example of the wrong way to practice criminal law, take a look at a decision issued today by the Kansas Supreme Court. The court imposed a two-year suspension of a defense attorney who was handling his first felony sexual solicitation case. The attorney had prior misdemeanor experience.

The client was charged with engaging in an online chat with a police officer posing as a 14 year old girl. An arrangement was made to meet in a Hardee's parking lot. The client showed up and was arrested and retained the attorney.

The client wanted to put on a false defense that the online chat was a joke initiated by his brother. He and his parents pressured the brother to cooperate in the false claim. In fact, the brother had been in Idaho at the time as evidenced by an arrest for DUI three days after the client's arrest. The brother also was in the military and preparing to deploy overseas.
The attorney accompanied the brother to the police to make the false statement. He told the brother that he was not his attorney, but would sit in. The police told the attorney that he could only sit in as the brother's counsel. Then, the police left the room.

A tape recorder was left behind and the attorney fiddled with (rewound) the tape. He did not know that he was also being video recorded.The police returned and allowed the attorney to sit in on the brother's statement.

The police confronted the brother, who confessed and was charged. The charges were dropped after he agreed to cooperate against the attorney and his own brother.

The attorney falsely denied that he had fiddled with the tape recorder until he was confronted with the video. He was charged with felony obstruction of justice and pled guilty to a misdemeanor attempted obstruction of official duties. The misconduct in the bar discipline case involved a conflict of interest in providing advice to the brother and his false statement to the police, which had falsely accused the brother.

The Disciplinary Administrator made alternative recommendations for discipline: disbarment if the attorney was found to have knowingly participated in presenting the brother's false evidence; if not, indefinite suspension. The hearing panel had proposed a 30 day suspension."

Thanks to the Legal Profession blog for the information!

The Defenders Episode 4

Tonight's episode of The Defenders again provided some good material for discussion. (For a discussion of previous episodes go here.) If you want to watch the episode before reading my comments on it go here (select the video tab and click on the episode aired Oct 13).

The theme in tonight's episode was perjury. It is first mentioned when the lawyer goes to interview his client's alibi witness. The witness says the client was with him at the time of the crime. The lawyer then tells the witness they have to make sure the stories match or that they keep the stories straight or something like that. I don't want to worry about possible perjury, he says. Well.... first question: was the lawyer really interested in making sure the stories matched or was he suggesting to the witness to start lying now and not change the story later because as long as he (the lawyer) does not know the truth, then he does not know there is any perjury going on...?

That aside, the case then gets more complicated and in another scene, in the middle of an argument, the lawyer yells at his client "start telling me the truth now!" So the client does and now the lawyer really knows the truth.

Two interesting questions arise in this second scene. When the lawyer is yelling at his client to tell him the truth, he actually says something along the lines of "just tell me the truth, I know you did it all along..." OK, what does he really mean when he says he "knew" the client was guilty all along. If he really knew it, then wouldn't that mean he also knew the alibi testimony was false, in which case he had solicited perjured testimony in the previous scene? ...or at least was ready to use perjury in support of the alibi?

Or, was it that he didn't really mean that he "knew" but just that he suspected and is now seeking confirmation....? Which leads to the discussion of the old question on when do lawyers really know anything?

But once the client tells the truth, everything changes, of course. Now the lawyer knows for sure and he understands the consequences. Now it is clear; he knows the alibi is false so, in another scene, he argues with his partner about how he can't use the alibi witness any more.

But the problems don't end there. Things get more complicated and the lawyer eventually decides he actually has to bring the alibi witness to testify.... why? I am not going to tell you. Go watch the show ....

$95,000 in sanctions for filing a lawsuit knowing it was time-barred

The 2nd U.S. Circuit Court of Appeals has affirmed a nearly $95,000 sanction that Eastern District of New York Judge Denis R. Hurley imposed on a Long Island attorney and his client for knowingly filing a time-barred securities fraud lawsuit. Go here for the full story.

Comment on Connick v Thompson

Sherrilyn Ifill, Professor of Law, University of Maryland School of Law, has published an article called Why We Ignored the Supreme Court’s Review of Connick v. Thompson in the American Constitution Blog (available here). In it, she concludes that "How the Court resolves the Connick case will have a powerful effect on public confidence in the justice system - especially for African Americans. It is one thing to know that some prosecutors will violate their oath of office and violate the constitutional rights of criminal defendants. It's quite another for the highest court in the land to suggest that prosecutors can do so with impunity."

Thanks to the Legal Ethics Forum for the link.

Judge holds lawyer in contempt for refusing to recite the pledge of allegiance

A story on how a judge tried to force a lawyer to recite the pledge of allegiance in court and then sent him to jail when the lawyer refused has generated a lively debate. There should be no question that the judge's conduct was improper. The most interesting part of the story is in the comments that follow below it. Go here to read the story and the comments.

UPDATE: Law.com has the story here.

"The Defenders"

I have been following the new "lawyer shows" on TV for the past three weeks (see here) and, at the risk of getting laughed at, I have say that the one I like the most is "The Defenders"! From the promos I thought this was going to be an over the top, dumb disguised detective show. I was right; but also wrong.

Most lawyer shows are not really about the law, but about the personal lives of the lawyers or they are what I call disguised detective shows - more about "who-done-it" than the legal issues related to the cases. "The Whole Truth" is a good example of this second category. The Defenders has a little of all that, and it is not perfect by any means, but each episode has given me serious material to discuss in class. Granted, the material usually relates to a short segment of the episode, but that is more than I can say about The Whole Truth which has contributed nothing to my class so far.

For example, two weeks ago episode 2 of the Defenders included a story line that combined issues of the duty to safeguard client property, client confidentiality, evidentiary privilege and duties to disclose information to the authorities, among others. In one scene a client brings the lawyer a large amount of money in cash which he says he took from his job's safe, used it to bet on a horse and won. The client's boss reported the stolen money and the cops are now looking for the person who took the money. The client is panicking and brings the money to the lawyer. Because the horse won the client actually has more money than what he started out with. ...So the lawyer then has to decide who has a right to the value added by the horse and whether to keep the money in his office, to give it back to the client or to give it to the authorities. He also has to decide whether to disclose the identity of the client when talking to the authorities. Sounds familiar? These are issues we discuss in class when studying the concepts of confidentiality, privilege and handling of evidence and the case People v Meredith. You'll have to go watch the show to see what happens. You can watch the full episode here. (Select the episode from 9-29-10).

Last week's episode, raised questions about the proper function of the judicial system, the dangers of overzealous prosecutors and overworked public defenders. (I think the criticism of the public defender system was not handled well, but that is a different matter). The episode also dealt with improper conduct by a lawyer and the issue of a lawyer having to testify in a trial while representing one of the parties.

It also had a scene where the lawyers discuss the notion of "truth" as it relates to a trial. This is something I spend a good deal of time talking about in class. Whether it is in the context of litigation, the adversary system, duties during discovery (the problem of "the properly asked question"), conducting client interviews or dealing with possible perjury, the concept of "the truth" is very important. Here is the video of that scene (after a short commercial). If you want to watch the full episode, it should start automatically a few seconds after the scene is over or you can go here. Here is the video:



"The Defenders" is on on Wednesday nights on CBS. Hopefully, it will last longer "than Outlaw"...

Comment on whether fees are unethical

Concerned with the possibility that clients who agree to a flat fee may end up paying more than what they would have paid if they had agreed to be billed by the hour, some jurisdictions have held that flat fees are not "earned" until the work is done and that any unearned portion must be returned to the client. This is consistent with the basic principle that a fee is unreasonable if it is not actually earned. But this view eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing. (For my previous comments on this go here and here.

I thought of this when I saw a comment by popular blogger Carolyn Elefant on fees which she called Billing Methodologies Don’t Act Unethically. Lawyers Do. In it, she concludes: "So is the flat fee to blame for the gigantic foreclosure mess, just as many have tried to blame the billable hour for unethical overcharges and the demise of biglaw? Of course not. True, the flat fee tempts lawyers to cut corners to keep costs down, just as the billable hour gives lawyers incentive to do unnecessary work to push bills up. But at the end of the day, the problem isn’t the chosen billing methodology, but rather, with the lawyers implementing it. Billing methodologies don’t behave unethically. Sadly, though, many lawyers do." Go here to read her full comment.

Article on the state of pro bono practice

Here is a link to a short article in the National Law Journal that discusses a recent study by the Pro Bono Institute surveying major law firms to assess their pro bono performance. The report for 2009 found that, despite the most difficult financial year in memory for major law firms, law firm pro bono and charitable giving actually increased, albeit at a far more modest pace than in previous years. Read the full article here.

Comment on Connick v Thompson's oral argument

Here is a link to a comment on the oral argument in Connick v Thompson published as part as the continuing coverage of the case by the Supreme Court of the US blog (SCOTUSblog).

Article on "unbundling" of legal services

Here is a link to a new article in the Illinois Bar Journal on "unbundling" of legal services.

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. For everything else, the client is either on his or her own or will rely on other lawyers.

Some say "unbundling" allows lawyers to provide access to legal representation to people who could not otherwise afford to hire the lawyer to represent them in all aspects of the case. Others respond, that that has always been the case.

The more difficult question we need to address is 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. Go here for my comment on this question.

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, which, in my opinion, is a very good thing.

On former client conflicts

Law.com is reporting (here) the story of Miami attorney Jonathan Aronson who was one of Royal Caribbean Cruises’ go-to defense lawyers on hundreds of personal injury and employee lawsuits for a decade. In 2009, however, the company established an in-house legal department and used Aronson for only one case. So he decided to "switch sides" and started suing the company as a plaintiff lawyer -- 65 times in 2009 to be exact. In response, Royal Caribbean is trying to get Aronson disqualified in all the cases arguing his representation of the plaintiffs against his former client is a breach of ethics and violation of attorney-client privilege, So far, these attempts have fallen flat, which is understandable if the Florida rule is like the ABA Model Rule on the subject. In fact, if the rules are the same, Royal Caribbean's argument should be rejected every time.

The third paragraph of the comment to the ABA rule states that "[m]atters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential FACTUAL information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter" and that "[i]n the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation."

It is only knowledge of specific facts gained in a prior representation that are relevant to the matter in question that ordinarily will preclude such a representation.

Md. Court Rules Defendants Have Right to Counsel at Bail Hearing

In a ruling that could have a major impact on the Maryland Public Defender’s Office, a state judge in Baltimore found that indigent criminal defendants have a right to counsel at their initial bail hearings. Story here.

Attorney sanctioned for comments and attitude during trial; but Ct does not declare a mistrial

Pharmalot has a story (here) about Gary Douglas, a plaintiff's attorney who represented a client who claimed Fosamax caused her to develop osteonecrosis. A few days ago, the judge in the case hit Douglas with a $2,500 sanction due to what has been described elsewhere as his manic and outrageous conduct during trial. According to the story, Douglas referred to another trial when he should not have done so, attacked the FDA during his summation over the way the agency is funded, characterized the FDA and the pharmaceutical industry for having an “incestuous relationship,” compared the FDA’s ability to monitor drug safety with the federal government’s response to Hurricane Katrina, improperly injected his own opinion concerning evidence into his summation, improperly referred to adverse event reports, accused Merck and its attorneys of hypocrisy, repeatedly disparaged defense witnesses and acted rudely, using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing and what the judge called "fooling around’ and making fun.” The judge's order is available here.

Although I have not looked at the record, it does sound like the totality of the circumstances justified imposing sanctions, but I have to say that I don't have that much of a problem with the part about the comments during the closing argument. After all, the FDA is underfunded and its relationship with the pharmaceutical companies is questionable. Was it relevant in the case? Was there evidence in the case to support the claim? I don't know... but assuming there was some relevance and some reference to it, I would have let this go as examples of acceptable rhetoric. The defendant would have its turn to counter the statements. They were not so damaging.... Go here for the full story.

But the story does not end there. Once the jury came back with an $8 million verdict for the plaintiff, the defendants (and their supporters) are complaining that the plaintiff's lawyer's antics should have resulted in a mistrial and that they should be granted a new trial. See here. The court, however, found no need for a new trial because the lawyer's conduct did not touch on the key evidence of the case. Instead, the judge reduced the judgment from the $8 million awarded by the jury to $1.5 million - which is half of what the plaintiff wanted.

Supporters of the defendant's position have argued (here) that the fact the plaintiff’s told the jury that his client needed $3 million as full compensation for her injuries and the jury awarded $8 million is "a big, flashing, incontrovertible sign that counsel’s advocacy improperly influenced the jury." "What else could possibly explain that verdict?"

Well, since I have not seen the record, I really don't know. But I can say this: no, the verdict, by itself, is not an incotrovertible sign of anything other than the fact that the jury thought $8 million would be a better result than the one the lawyer asked for. And why could that be the case? Maybe the jury thought the lawyer was incompetent and that the evidence showed the client should be better compensated; maybe the jury wanted to impose punitive damages to punish the defendant but couldn't so they added more zeros to the compensatories; maybe the jury wanted to "nullify"; maybe the jury was incompetent... who knows?

As even the defendant's supporters have argued, "attempts to ascertain the prejudicial effect of conduct are necessarily based on speculation about the effect of that conduct on a jury." Thus, at least from what I have seen so far, I think the judge was justified in denying the request for a new trial. Since I am as intolerant of improper conduct as the next guy, I am certainly willing to be convinced otherwise, but that's what I am saying now.... The judge should deal with the conduct by imposing sanctions or contempt, not by giving the defendant a new trial.

Law.com has more on the story here. AboutLawsuits has the story here.

Listen to oral argument for Connick v Thompson here

At the end of each week the Supreme Court releases audio recordings of the week’s oral arguments. Go here to listen to the oral argument on Connick v Thompson. It is available in several different formats including windows media and MP3.

NBC cancels "Outlaw"

As expected, the TV show Outlaw has been cancelled. (See here and here). The Blog of the Legal Times is reporting that the remaining episodes of the show will be aired, but no new ones will be made unless there's a surprise uptick in viewership. That is not likely to happen! Now the question is which lawyer tv show lasted less: Outlaw or The Deep End? Does anyone know? Watch The Defenders or The Whole Truth instead.

Connick v Thompson: the "other" case the Supreme Court heard yesterday

Snyder v. Phelps was the center of attention yesterday at the Supreme Court, but it was not the only important case the Court heard. The other important case before the court was Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit had affirmed a $14 million award for the wrongful conviction and death sentence of the defendant in a murder case.

The basis of the claim is that the defendant district attorney's office failed to train its lawyers on their legal and ethical duty to disclose exculpatory evidence, which resulted in the wrongful conviction of the then-defendant-now plaintiff. The opinion of the Court of Appeals is available here.

When originally reported in the Blog of the Legal Times, District Attorney Leon Cannizaro Jr. was said to have appealed the ruling to the Supreme Court, "asserting that upholding the 5th Circuit's decision "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct.""

This is a strange argument since the original claim was not based on vicarious liability at all but on the conduct of the district attorney's office itself. According to a story in Slate magazine, at one point, when questioned under oath the then-district attorney Harry Connick, Sr. could not articulate the Brady rule and after listening to two days of testimony about how Connick ran his DA's office, with the acting prosecutors blaming each other and fumbling over conflicting and inaccurate explanations of what Brady requires, a federal court jury in New Orleans awarded Thompson a $14 million verdict in 2007. The jury found that his 18 years behind bars (14 of which he spent in solitary confinement on death row) were caused by Connick's deliberate failure to train his prosecutors on their obligations to turn over exculpatory evidence. According to the Innocence Project, a national organization that represents incarcerated criminals claiming innocence, 36 men convicted in Orleans Parish during Connick's tenure as DA have made allegations of prosecutorial misconduct, and 19 have had their sentences overturned or reduced as a result.

The petitioners' response has been to argue that prosecutors should have absolute immunity from suit— because the plaintiff did not show there was a "pattern" of violations of the duty under Brady. They argued repeatedly that the case was the result of a single violation and in response to some questions during the oral argument appeared to argue that, even if there was a pattern of conduct, there could never be liability for the first offense.

The misunderstanding about whether the case is about vicarious or direct liability aside, the case will have important implications for the concept of prosecutorial immunity and the reach of the possible civil liability in tort and of the ethical responsibilities of the DA's office and its prosecutors.

The case also has another interesting connection to another issue of professional responsibility: the original case against the defendant was the underlying case in In Re Riehlmann (La 2005) often discussed in connection with the duty to disclose attorney misconduct under Rule 8.3. This was the case in which a former prosecutor, upon learning he was dying of cancer, finally decided to unburden himself and confess to a friend (Riehlmann) that he (the prosecutor) had intentionally withheld exculpatory evidence in a case that resulted in the imposition of the death penalty. That case was the case against Thompson, the then defendant-now plaintiff who eventually got the $14 million for the wrongful conviction.

So, let's recap. In 1985, a prosecutor withholds exculpatory evidence intentionally in a case against a man named Thompson, who is then convicted and sentenced to death. In 1994, the prosecutor confesses what he did to his friend Riehlmann. Riehlmann does nothing about this for 5 years. After the exculpatory evidence is discovered in 1999, Riehlmann reveals what the former DA had told him. (Years later, Riehlmann is disciplined for his own misconduct in failing to disclose the prosecutor's misconduct). Eventually, after spending almost 20 years in death row for a crime he did not commit, Thompson's conviction is vacated, he is re-tried and found not guilty. Thompson then sued for damages arguing a violation of this rights under 42 USC Sec 1983 and was awarded $14 million. The Court of Appeals affirmed and now the Supreme Court will review the case.

Interpreting the questioning by the justices during yesterday's oral argument, Law.com concludes that the "Supreme Court justices on Wednesday appeared ready to give the green light to efforts by a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit."

For a detailed account of the story behind the case go to Slate.

For more on the case go to the Legal Ethics Forum, USA Today, the Washington Times, the Boston Herald, the Law.com, Main Justice, and the the Washington Post. (Thanks to Scotus Blog for these links).

For the actual transcript of the oral argument go here.

For all the briefs, the opinion of the Court of Appeals and other legal documents go here.

UPDATE Oct 8: Go here to listen to the oral argument.

Yet another conviction reversal because of prosecutor's improper comments

About a month ago, I posted a comment about yet another case reversing a conviction due to the prosecutor's improper comments during the trial (see here). That one was the fourth such case I had heard about in a month. Now, just short of a month later, here is a fifth case. In this new case, called People v Vance, the prosecutor asked the jurors to imagine how the victim must have felt as he was dying and attempted to narrate the last moments of his life in detail. Defense counsel objected and the judge sustained the objection but the prosecutor continued with the same type of argument even after the objection was sustained several times. There is no way to know whether the prosecutor really knew that what she was doing was wrong, but what we do now is that she is not likely to be disciplined (see here). Now that the conviction has been reversed, hopefully she and other prosecutor do know that such tactics are not only wrong but also counterproductive. For a description of the case, including the actual comments by the prosecutor go to the Legal Ethics Forum here.

ABA responds to critics regarding access to ethics opinions

A few days ago, I posted a note about the debate on the availability (or lack of it) of ABA Ethics Opinions and the ABA's practice to charge for granting permission for others to copy or use the opinions in some cases. See here. In response, the ABA has published this announcement.

Interestingly, the announcement actually admits to the accuracy of the main criticism: the ABA does not allow others to post the opinions on their own sites claiming copyright protection. Instead, the ABA encourages others to link to the ABA’s website to access the opinions, but since the opinions are only available free of charge for six months, the links are of little use to those who are not members of the ABA after that period of time. Those who defend the ABA's position argue that enforcing copyright protections allows the ABA to generate some income to cover the costs of providing its services to the profession and that lawyers who want to enjoy the benefits of those services should contribute to pay for them.

Thanks to the Legal Ethics Forum for the update.

How not to practice law: tell your divorce client's wife you want to go out with her

Here is yet another story of an attorney having (or trying to have) sex with a client's spouse. In this case, the Indiana Supreme Court suspended an attorney for 90 days. The attorney sent the client's wife a series of e-mails in which the attorney discussed the attorney's romantic interest in the wife. The court affirmed findings that the attorney had breached his duty of confidentiality and engaged in a conflict of interest. The case is called In The Matter of Fillenwarth and you can read it here.

For the other stories involving attorneys and their client's spouses go here, here, here and here.

Study shows Calif. Courts Discipline Fewer Than 1% of Prosecutors They Find Committed Misconduct

A new study by Professor Kathleen Ridolfi of Santa Clara University School of Law, who is also the Executive Director of the Northern California Innocence Project and Maurice Possley, Visiting Research Fellow of the Northern California Innocence Project and a Pulitzer Prize-winning Criminal Justice Journalist, concludes that California courts discipline fewer than 1% of prosecutors they find committed misconduct. The ABA Journal has the story here. You can read the report here.

UPDATE 10/6/10: Law.com has the story here.

Texas lawyers debate whether to ban sex with clients

For the past seven years, a committee has been drafting new rules of conduct for attorneys in Texas on behalf of the Texas Supreme Court. Now, with a draft of those rules finally on the table, Dallasnews.com reports (here) that the biggest sticking point has been a rule that would ban sex with clients. Even though most states have adopted rules that prohibit a lawyer from engaging in a sexual relationship with a client, many lawyers are arguing against it, saying it could lead to frivolous malpractice charges. For more on this story go to The Wall Street Journal Law Blog here and Texas Lawyer here.

ABA issues opinion on use of websites; debate ensues as to whether opinions should be provided free to all lawyers

The ABA has published a new Ethics Opinion (No. 10-457) on ethics issues related to lawyers use of websites. I have not had a chance to see the opinion so I will save my comments on it for a future date. However, the announcement generated a very spirited debate on a different issue.

After the opinion was circulated by email to all subscribers of the Ethics 20/20 Commission listserv with a warning from ABA staff counsel not to post it publicly due to copyright restrictions, a debate erupted on whether the ABA should make its Ethics Opinions available for free to all lawyers.

It all started when blogger Carolyn Elefant, frustrated because she could not post the opinion for the benefit of her readers, instead published an open letter to the ABA complaining about a general lack of access to ABA opinions. You can read her comments here. The response was fast and furious both in her website, in a barage of e-mail messages in the 20/20 commission listserve and elsewhere. For example, see here and here.

Elefant argues that "making access to ethics opinions contingent upon ABA membership is unacceptable. ABA opinions often serve as the basis for other bars’ actions (though as an aside, I note that with regard to the ABA Opinion on websites, it’s rather like the tail wagging the dog, with the ABA parroting dozens of other bar decisions as it issues guidance on a technology that lawyers have been using for 15 years). Lawyers should not be charged a toll for access."

On the other hand, members of the ABA Commission have argued that asserting copyright protections allows the ABA to raise funds. They also argue that there is nothing wrong with saying that attorneys should join the ABA to get ABA publications.

UPDATE 10-6-10: In response to the criticism regarding access to ethics opinions, the ABA has published this announcement.

Interestingly, the announcement actually admits to the accuracy of the main criticism: the ABA does not allow others to post the opinions on their own sites claiming copyright protection. Instead, the ABA encourages others to link to the ABA’s website to access the opinions, but since the opinions are only available free of charge for six months, the links are of little use to those who are not members of the ABA after that period of time. Those who defend the ABA's position argue that enforcing copyright protections allows the ABA to generate some income to cover the costs of providing its services to the profession and that lawyers who want to enjoy the benefits of those services should contribute to pay for them.

Australian PR blog comments on the issue of rude behavior

A few days ago, I commented on a story about whether rude behavior should be considered to be unethical conduct. See here and here. Today, the Australian Professional Responsibility blog has posted a comment on the issue here.

NLJ editorial on the need to expand legal services for the poor

A couple of days ago I wrote about the debate in Wisconsin over providing lawyers to the poor in civil cases. Here is a link to an editorial in the National Law Journal from earlier this summer that argues that "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."

Should Lawyers Blog (Or Twitter) About Their Cases?

Attorney and popular blogger Eric Turkewitz has posted a short comment on the debate on whether practicing lawyers should write about their current cases, particularly while the cases are on-going. While some attorneys argue that it is important and informative for the public to get "inside" information about exactly what it is that lawyers do on a daily basis, others argue that it is improper or, at least, dangerous because there is always the risk of disclosing confidential information that could harm the client's interests. Read the comment here.

Is a lawyer representing himself or herself entitled to attorneys fees?

Is a lawyer who is successful in representing his or her own interests in litigation entitled to attorneys fees (when such fees are allowed or mandated, of course)? The Ethical Quandary blog has an update on the issue discussing or linking to cases that answer the question in Maryland, Washington, California and Oregon. Go here for all the information and links.

Legal Aid Group asks Wisconsin Supreme Court to provide free representation in civil cases

The Milwaukee Journal Sentinel is reporting (here) that a legal-aid group called Legal Action of Wisconsin plans to present a petition to the Wisconsin Supreme Court to adopt a rule that would provide free lawyers to some civil litigants arguing it is needed to protect poor litigants’ rights to basic human needs.

The proposed new rule would read as follows: "Where a civil litigant is indigent (defined as below 200% of the federal poverty guidelines), the court shall provide counsel at public expense where the assistance of counsel is needed to protect the litigant's rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement. In making the determination as to whether the assistance of counsel is needed, the court may consider the personal characteristics of the litigant, such as age, mental capacity, education, and knowledge of the law and of legal proceedings, and the complexity of the case."

Podcast on ethics and "e-discovery"

The Legal Talk Network has a 25 minute long podcast on ethical issues related to e-discovery here (also available here). The show features Judge Herbert B. Dixon of the Superior Court of the District of Columbia. Among other topics, Judge Dixon discusses the ethical rules which are most often violated in e-discovery and the unique issues in criminal law related to ethics and e-discovery.

ABA Journal seeking nominations for best law blogs

Every year, the ABA publishes a list of the best 100 law blogs and they recently began to seek nominations for this year's list. Go here to nominate all your favorites.

What is the proper level of sanction?

I have often commented on inconsistent sanctions for similar conduct. Here is a link to a comment on this subject by Carolyn Elefant, a solo practitioner who runs a very good blog called "MyShingle". Her post is called "Solo Suspended for Trust Error But Biglaw Unscathed for Botching Capital Appeal" and it is available here. She seems to favor flexibility in sanctioning and that sanctions should be based on case by case evaluation of the circumstances. She discusses a specific case where she believes the authorities should have been lenient even though the conduct involved violations of rules related to handling client's money.

Whistleblower protections and in-house counsel

Just a couple of days ago, my class covered issues related to "in-house counsel" including the Balla v Gambro decision denying lawyers the right to sue for wrongful discharge when they are fired for acting according to professional conduct obligations. Today I saw in my print version of the National Law Journal a new article on that very subject. Here is a link to it.

Mandatory pro-bono in Mississippi

Three days ago I noted that the Mississippi Supreme Court is considering requiring attorneys to perform 20 hours of pro bono service. Today, Law.com is reporting on the story here. Law.com's report adds that under the proposed plan attorneys who do not perform the mandated hours would have to pay a $500 fee. It is not clear whether the fee is to be paid as a form of punishment or as a way to comply with the obligation by providing funding for legal services.

What's with all the lawyer shows on tv?!

I don't watch a lot of TV, but I try to check out shows about lawyers just in case they raise issues I can discuss in class. There have always been shows about lawyers, although many of them were (or are) disguised "detective" stories - more interested in the drama of figuring out "who did it" than on the legal issues that surround the case. But I don't remember so many lawyer shows running at the same time.

Right now there are four new lawyer shows on - three of them at the same time on Wednesday nights. At some point there were promos going around about a fifth one, but I suspect that one may have been dropped since I have not seen or heard anything about it since it was announced back in the summer.

In any case, the new lineup includes Outlaw, about which I have written before and which every report I have read agrees is crap, The Defenders, The Whole Truth and Law and Order LA. These last three run against each other on Wednesday nights.

Here is a quick review of the Defenders by one of the law blogs I read regularly. In a nutshell, this appears to be just another disguised "detective" show (with a comic tone to it, I guess) in which lawyers do the detecting in order to help their clients.

Last Wednesday I opted to watch The Whole Truth instead and here is my quick review: The show tries to be more serious than the others. It follows the work of a district attorney and a defendant's lawyer as they prepare for and try a criminal case. The editing is done so that you get to see the work of each side separately which is interesting, although perhaps not the best narrative model. Given time constraints, the pace of the show is a bit too fast or frantic and the defendant's lawyer (and his firm) follow a familiar Hollywood mold.

What the producers are trying to sell as "different" about this show is that the lawyers never really know "the truth." Now, this is realistic, but unfortunately, the show then feels the need to fill the void for the audience by "solving" the uncertainty at the end. In other words, the audience will know in the end what really happened, even if the characters in the show do not. That's too bad. I think the show would be better if it left everyone with that realistic uncertainty of not really knowing, but I guess I understand this would not make for a popular choice among TV producers who want a happy audience....

USA Today article on prosecutorial misconduct

USA Today has published a long article on prosecutorial misconduct that concludes that federal prosecutors repeatedly have violated their duties as ministers of justice in courtrooms across the nation, adding that "[t]he abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." The article (which includes lots of links to even more information) is available here.

Can lawyers use social media to gather information about opposing party?

The Legal Ethics Forum is reporting that the New York State Bar Association has issued an Ethics Opinion on investigations through the use of social media. The New York opinion states that, as long as the lawyer does not use deception, a lawyer can typically use any other information that is either publicly available or accessible to anyone who is a member of the network. The opinion can be found here. A similar opinion from the Philadelphia bar can be found here.

Thanks to the Legal Ethics Forum for the information and links. For more information go to the Legal Ethics Forum here and here.

UPDATE Oct 7, 2010: The Ethical Quandary has a comment here.

More on the question of rude behavior

A few days ago, I posted a comment on whether rude behavior constitutes unethical conduct (here), a topic that generated some responses in The Legal Ethics Forum (here).

Adding to the discussion, the Legal Profession blog is reporting that a Colorado Hearing Board has imposed a suspension of a year and a day on an attorney for his pattern of disrespectful and contemptuous behavior in a federal court trial. Among other things, the attorney called another attorney a “fucking weasel” after the attorney reminded the insulting attorney that he should not coach his client during a recess. The attorney also called another attorney a “pinche cabrón” and an “hijo de puta.” (In the footnotes, the board defines these terms as "damned goat, big goat" and "son of a whore," which made me laugh. The word "cabrón" is, in fact, quite insulting to a Spanish speaker, but I can tell you it has nothing to do with a "goat"!! )

It is important to note that both incidents ocurred out of the jury’s presence and involved comments made to another attorney, not to a party as in the case I wrote about a few days ago. Yet, the board found the attorney acted with the intent to disrupt the tribunal in violation of, among others, Rule 8.4.

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

Here is the most recent addition to our running list of examples of how not to practice law. This is one we have seen before (here) and it should be pretty obvious. As usual, the underlying principle is simple: don't ask your client to pay your fees with cocaine!

The Legal Profession blog and Law.com are reporting that North Dakota's Supreme Court has disbarred an attorney for asking a client for cocaine.

Aside from the basic principle, though, the issue of drug addiction presents another problem. If the attorney has an addiction, is disbarment the proper sanction? Should the bar have a duty to attempt to help the lawyer seek rehab? Would it be better to suspend the lawyer subject to proof of completion of rehab and then allow the lawyer to be readmitted subject to conditions like periodic testing or something like that? Or is the risk to clients to high?

Does an attorney have a duty to non-clients?

The Court of Appeals of Kentucky has issued an opinion that illustrates one of the few instances where attorneys are sometimes held to owe a duty to a non-client. In that case, the court held that although the plaintiff was not a client, the attorney owed a duty because the plaintiff may have been an intended beneficiary of the lawyers' conduct and the lawyers failed to do a proper title search. The case is called Tipton v. Porter and it is available here.

Meanwhile, a court in New Jersey reached the opposite result in a case called Holvenstot v. Nusbaum (available here).

More and more people qualify for legal aid; is mandatory pro-bono an answer to the crisis?

The Census Bureau's recently released a report that details that nearly 57 million Americans now qualify for civil legal assistance from programs funded by the federal Legal Services Corporation (LSC). That's the number of Americans who, in 2009, were at or below 125 percent of the federal poverty level threshold, an income ceiling of $27,563 a year for a family of four. This is an increase of 3 million from 2008.

Meanwhile, the Wall Street Journal is reporting that the Mississippi Supreme Court is considering a proposed rule to require lawyers in the state to provide at least 20 hours of pro bono work.

But Mississippi lawyers are reportedly not happy that altruism may be forced upon them, the Clarion-Ledger reports.

Read the full sotry (with links to more) in the Wall Street Journal Law Blog. Also, click here to see Above the Law’s take on the proposed rule.

Attempt to regulate attorney speech in Utah abandoned

Back in June, the Wall Street Journal reported that a proposal was being discussed in Utah to regulate what lawyers could say about the judicial system. The proposed amendment to the rules would have stated that "[a] lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the judicial system . . ."

As you would expect, there was substantial opposition to the new rule and four days ago The Salt Lake Tribune reported (here) that the Supreme Court’s Advisory Committee on the Rules of Professional Conduct, which made the proposal initially, decided to recommend against adopting the change.

Thanks to Christi Brock for the update.

When does rude conduct become unethical conduct?

Mike Frisch (Ethics Counsel for Georgetown Law Center) of the Legal Profession Blog has an interesting comment on this as it relates to a case in which the Illinois Administrator filed a complaint alleging, among other things, that an attorney "engaged in misconduct toward an opposing party."

This vague conclusion apparently refers to conduct that was, quite simply, rude. The complaint states that as the attorney and the opposing party left the courtroom, the attorney said to the opposing party "have a nice day, you piece of shit."

This comment was cited as a violation of two ethics rules: (1) using means that have no substantial purpose other than to embarrass, humiliate or burden a third person, and (2) conduct prejudicial to the administration of justice.

Mike Frisch then concludes:

"I predict that the Administrator will lose on both counts. The comment displayed a lack of civility and professionalism, but anyone who cannot handle being called the "s" word cannot function in modern society. I doubt that a finder of fact will find this conduct sufficiently humiliating or burdensome to violate the rule. And prejudicial to the administration of justice? It was not said in open court on the record before a judge."

I am not so sure that I agree. If the comment had been made to opposing cousel, maybe ...., but the comment was made by a male attorney to a female opposing party (a grandmother) who had appeared in court without a lawyer. Also the attorney was representing a man who had violated the terms of a protective order to stay away from the woman and her grandson. The attorney had no business talking to her without counsel present to begin with, let alone to be rude (and possibly intimidating) in that manner. I don't think it is a stretch to say that under the circumstances, the conduct is prejudicial to the administration of justice.

The complaint is available here.

UPDATE: A note about this case has generated a short debate over at the Legal Ethics Forum (here).

UPDATE 10/3/10: The Australian Professional Responsibility blog has posted a comment on the issue here.

European Court Limits Attorney-Client Privilege for In-House Counsel

In a blow to multinational businesses and their in-house counsel, the European Court of Justice on Tuesday held that communications between company management and in-house lawyers are not protected from disclosure or discovery in competition law cases or investigations by the European Commission. Go here for the full story.

Court reverses conviction because of Judge's comments making fun of attorney

Law.com is reporting that a unanimous appeals panel in New York reversed a robbery conviction and remanded the case to be tried before a different judge after it found that the trial judge ridiculed a defense attorney and criticized his arguments in front of the jury by using loaded words such as "clown," "silly," "outrageous" and "comedy." This is the fourth time in about a month I have seen news of a conviction getting reversed because of comments by a trial participant. Go here for the full story. For the other two recent cases, go here and here.

How not to practice law: have sex with client's wife

Continuing our on-going list of things you should not do while practicing law, here is a report on two cases in different states reported on the same day last week involving attorneys having sex with their clients' wives.

In one of the cases, the South Carolina Supreme Court found that the circumstances came "dangerously close to an outright conflict of interest" holding that "Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife. Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship."

How this description of the case is not a per se conflict of interest is beyond me! The court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a lawyer from finding himself in a situation where his representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.

It seems obvious to me that the moment the attorney began his relationship with the client's wife, the representation of the client was in danger, and the lawyer was operating under a conflict. And this is just the "legal" analysis. Add to that the notion of the betrayal of the client's trust and it seems to me an anonymous admonition is a bad joke.

Interestingly, the court then goes on to hold that from now on a sexual relationship with the spouse of a current client will be considered per se violation of Rule 1.7 (on conflicts), "as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney."

If that's the case, I don't see why the court could not have held the same thing in this case and imposed a harsher sanction. The court made a point of saying the anonymous lawyer had always been "upstanding member of the bar" up to this point. I wonder who he is? Oh, yeah, I don't know because the order was anonymous! See the order here.

In contrast, in the other case, the Michigan Attorney Discipline Board suspended the attorney for three years while a dissenting opinion argued for disbarment. See the ruling here

In this case, the client was suspicious that his spouse was having an affair and sought his attorney's advice. The attorney, not surprisingly perhaps, did not tell the client it was him (the attorney) who was sleeping with the client's wife.

Eventually, the client discovered the affair and demanded a refund of the fees he had paid to the attorney. The attorney refused, "stating that he had worked on the case and had earned his fees" !! He also earned a suspension.

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

Podcast on med mal in California touches on effects of regulation of attorney's fees on litigation

Go here for a podcast on California's medical malpractice laws featuring Doug Merritt, a lawyer from San Francisco and Jeffrey S. Mitchell, partner with the firm, Bostwick, Peterson & Mitchell LLP. They discuss the Medical Injury Compensation Reform Act (MICRA) and California’s current political climate, the defense and plaintiff perspective of medical malpractice cases and how structured settlements have impacted clients.

Of interest to readers of this blog is the fact that the beginning of the discussion touches on the possible effects of the regulation of attorney's fees on access to legal representation and the conduct of lawyers in the process of litigation and negotiation.

Reviews of "Outlaw"

The Abnormal Use blog has posted a review of the tv show Outlaw, about which I wrote yesterday. You can read the full review here. It concludes that "the premise of the show is absurd" and that "the absurdity of the premise will likely mean the end of the show." I have to agree. The show is heavy on the rhetoric and weak on logic, acting and storytelling.

You can find more reviews here and here. Not surprisingly, it looks like they are all negative. I wonder if the show will last longer than "The Deep End." Anyone remember that one?!

I will continue to update this post with more links if I see more reviews during the day...in case you are interested.

UPDATE: here is the review from the Blog of the Legal Times. It concludes that "[t]he show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis."

New TV "courtroom drama" preview tonight

Back in June, I posted the comment that appears below about three new TV shows expected to start this fall. One of them - Outlaw - previews tonight on NBC and I have seen commercials for one of the others - "The Defenders". But I have not heard anything at all about the third one.

Unfortunately, although as I expected, the (p)reviews for Outlaw are not good. The Washington Post wrote that "the show is so ludicrously dumb that your eyeballs will hurt from rolling so much." See the full review here. It concludes the show "should be dismissed." Go here for more on the story.

The Blog of the Legal Times said it will blog on the show tomorrow.

Here is my post from last June:

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"?

Most Illegal Immigrants Don’t Get Legal Representation

According to a survey by the Chicago-based National Immigration Justice Center, thousands of people in immigration detention facilities are held without ready access to legal representation because of geographically-isolated facilities, government restrictions on phone contacts, and inadequately funded legal information programs. For the story go to the Wall Street Journal, the Los Angeles Times and the Blog of the Legal Times.

Unauthorized practice of law is a problem in Texas

Officials with the Supreme Court of Texas Unauthorized Practice of Law Committee (UPLC) say complaints about immigration consulting businesses run by nonlawyers are a problem in Texas. Many people who use such services do not speak English. They are unaware that the people who run the businesses may not be attorneys and that their immigration issues might be mishandled by nonlawyers, officials say. Go here for the full story.

Arbitrator rules Toyota former attorney can use arguably privileged documents in litigation against Toyota

The ABA Journal.com is reporting that an arbitrator has ruled that a former in-house lawyer for Toyota may use documents that otherwise would be protected by attorney-client privilege because he has made a prima facie showing that a crime-fraud exception applies. Go here for the full story. Go here for the text of the arbitrator's ruling.

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.