The Chicago Tribune and Prof. Jonathan Turley are reporting that the Michigan Court of Appeals has found a defense attorney rendered ineffective assistance of counsel after the prosecutor herself raised concerns. The prosecutor claimed that defense counsel told her that defense counsel "held back on her defense" because she thought the defendant was actually guilty. Defense counsel did not deliver an opening statement and did not present a single piece of evidence. She also declined to cross examine the victim and other key witnesses and did not object the prosecutor's use of hearsay evidence. The court concluded that "counsel failed to subject the prosecution’s case to any meaningful adversarial testing." Go here and here for the full story.
If true, the conduct of the defense attorney was shameful. On the other hand, after so many stories of prosecutorial misconduct in the past couple of years, it is refreshing to hear about a prosecutor who takes seriously her duty to make sure that justice is done, not just that convictions are obtained.
The case is People v. Gioglio and it is available here.
Sunday, April 10, 2011
Saturday, April 9, 2011
John Thompson, the plaintiff in Connick v Thompson, writes about his case in the New York Times
Here is a link to a short article by John Thompson, the plaintiff in Connick v. Thompson, published today in the New York Times. The article starts like this "I spent 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished." Towards the end, Thompson adds "I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued."
These are all valid questions, although it should be clarified that the prosecutor who withheld the evidence died and the one to whom he confessed but did not disclose was disciplined. Harry Connick, Sr., the original defendant, in charge of the prosecutors' office, retired I believe. To my knowledge, though, no one else has been disciplined.
These are all valid questions, although it should be clarified that the prosecutor who withheld the evidence died and the one to whom he confessed but did not disclose was disciplined. Harry Connick, Sr., the original defendant, in charge of the prosecutors' office, retired I believe. To my knowledge, though, no one else has been disciplined.
Thursday, April 7, 2011
Washington Post editorial on Connick v Thompson
The Washington Post has published a short editorial criticizing Connick v. Thompson that starts like this: "A court decision may be legally correct but ultimately fall far short of justice. That is the case with the decision rendered last week by the Supreme Court in Connick v. Thompson." To continue reading go here.
Tuesday, April 5, 2011
Congress discusses the future of legal aid
Rep. Frank Wolf (R-Va.), chairman of a House appropriations subcommittee said today the largest source of funding for legal aid, the Legal Services Corp., still faces proposed cuts from the House’s new Republican majority. LSC and its local partners should turn to resources from large law firms, state bar dues and law schools, he said and added that private-sector lawyers aren't doing enough to help the nation's poor with legal problems. He warned that they might need to make up for expected cuts in federal funding. Go here for the full story.
Supreme Court stops two executions due to lawyers' conduct
The Supreme Court has sayed two executions scheduled for later this week in Arizona and Texas. By doing this, the Court has put itself in a position to take on an issue that has lingered unresolved for two decades: whether there is a constitutonal right to a lawyer performing effectively in a new challenge started after a conviction has become final. For more on this go here.
Monday, April 4, 2011
Podcast on ethics issues related to websites that "rate" and review lawyers
Saturday, April 2, 2011
Podcast on e-discovery and Facebook
In the April edition of Law Technology Now, host Monica Bay interviews Craig Ball, author of the Law Technology News’ column, “Ball in Your Court”. They discuss recent e-discovery cases and developments, including Facebook’s decision to create a “one-button” tool to collect user data on its social media site. To listen to the podcast go here, here or here.
ABA Commission releases paper on multi-jurisdictional practice
The Legal Ethics Forum is reporting that the ABA’s Ethics 20/20 Commission has released an issues paper (here) relating to multijurisdictional practice. It identifies possible mechanisms for liberalizing cross-border practice and asks for feedback on whether such changes would be desirable.
Another comment on Connick v Thompson
Lisa McElroy of the SCOTUS blog writes:
"Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines: Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision. Indeed, the facts of Connick are pretty upsetting and powerful: Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable. He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed. The catch? Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case. Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.
So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick. Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors. But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers. Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions."
"Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines: Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision. Indeed, the facts of Connick are pretty upsetting and powerful: Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable. He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed. The catch? Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case. Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.
So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick. Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors. But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers. Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions."
Supreme Court decides Connick v. Thompson on the possible liability of a DA's office
Last Tuesday the US Supreme Court announced its decision in the highly awaited case Connick v. Thompson. For my previous posts on the case, including links to the oral argument go here, here and here.
In a five-four opinion by Justice Thomas that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference.
In this case, the defendant conceded that the prosecutor in a case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before the truth came to light.
In a dissent joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg stated that "The evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983."
As usual, the opinion has generated much attention in the media. Here are some of the links I have seen, most of which are courtesy of the SCOTUS blog:
The legal ethics forum has some comments here.
Bob Barnes of the Washington Post reports that Connick is “the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.” Barnes adds that the decision “marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.” The New York Times, USA Today, Constitutional Law Prof Blog, the Los Angeles Times, CNN, JURIST, Crime & Consequences, Courthouse News Service, and ABA Journal have additional coverage.
In a five-four opinion by Justice Thomas that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference.
In this case, the defendant conceded that the prosecutor in a case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before the truth came to light.
In a dissent joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg stated that "The evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983."
As usual, the opinion has generated much attention in the media. Here are some of the links I have seen, most of which are courtesy of the SCOTUS blog:
The legal ethics forum has some comments here.
Bob Barnes of the Washington Post reports that Connick is “the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.” Barnes adds that the decision “marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.” The New York Times, USA Today, Constitutional Law Prof Blog, the Los Angeles Times, CNN, JURIST, Crime & Consequences, Courthouse News Service, and ABA Journal have additional coverage.
Friday, April 1, 2011
How not to practice law: claim that everything is confidential
The ABA Law Journal is reporting today that a federal appeals court has imposed a $1,000 fine on an attorney from the law firm Katten Muchin Rosenman for "extensive use of improper confidentiality markings." Go here for the story.
Monday, March 28, 2011
Proper punishment or abuse of discretion?
At the end of 2009, I posted a comment on the issue of whether humiliation is a proper punishment in our criminal justice system or whether it should be considered an abuse of prosecutorial or judicial discretion. A few days later I posted an editorial on the subject by Prof. Jonathan Turley published by USA Today (here)
Now comes news that a judge and prosecutor have demanded that Willy Nelson sing a song in court as part of a plea agreement in a simple marijuana possession case. Prof. Turley, consistent with his position in the article cited above, wrote today "I hate to be a cold blanket, but find this neither funny nor tolerable for a legal system. Both the judge and the prosecutor appear to be intoxicated by celebrity crime. . . . If these facts are correct as widely reported, there should be an investigation by the bar of both the role of the prosecutor and the court. Dean-Walker can still redeem herself by treating Nelson like other defendants and sanctioning the prosecutor if he did in fact demand this condition for a settlement." You can read his comment here.
Now comes news that a judge and prosecutor have demanded that Willy Nelson sing a song in court as part of a plea agreement in a simple marijuana possession case. Prof. Turley, consistent with his position in the article cited above, wrote today "I hate to be a cold blanket, but find this neither funny nor tolerable for a legal system. Both the judge and the prosecutor appear to be intoxicated by celebrity crime. . . . If these facts are correct as widely reported, there should be an investigation by the bar of both the role of the prosecutor and the court. Dean-Walker can still redeem herself by treating Nelson like other defendants and sanctioning the prosecutor if he did in fact demand this condition for a settlement." You can read his comment here.
Can an attorney respond if the judge asks whether the attorney knows why the client is missing?
Suppose that night before a hearing is supposed to start, the mother of a criminal defense attorney tells the attorney that her son (the client) is not going to show up. Then, when the judge notices the defendant is missing, the judge asks the lawyer where the client is or whether the lawyer knows why the client is not there. What should he lawyer do?
A short ethics opinion by the San Diego County Bar Association concludes that, under the California Rules of Professional Conduct, the attorney can't do anything. The attorney simply can't answer the judge’s question. If the attorney says she does not know, she is being dishonest with the court in violation of her duty of candor, and if she discloses the information provided by the mother, the attorney would be in violation of her duty of confidentiality.
Thus, the only proper response by the attorney would be that she can't answer the question. The Opinion (SDCBA Legal Ethics Opinion 2011-1) is available here.
Thanks to the Legal Profession blog for the link.
A short ethics opinion by the San Diego County Bar Association concludes that, under the California Rules of Professional Conduct, the attorney can't do anything. The attorney simply can't answer the judge’s question. If the attorney says she does not know, she is being dishonest with the court in violation of her duty of candor, and if she discloses the information provided by the mother, the attorney would be in violation of her duty of confidentiality.
Thus, the only proper response by the attorney would be that she can't answer the question. The Opinion (SDCBA Legal Ethics Opinion 2011-1) is available here.
Thanks to the Legal Profession blog for the link.
Colorado DA implements a plan that creates incentives for DAs to violate their duties
Should prosecutors receive bonuses if they score relatively high conviction rates? The Wall Street Journal Law Blog is reporting (here) that according to a plan devised by Colorado district attorney Carol Chambers assistant district attorneys are eligible to earn an average $1,100 reward if they participate in at least 5 trials during the year and get felony convictions in at least 70% of their trials. Plea bargains don’t count.
Am I missing something or is this institutionalizing a systems that by definition creates a conflict of interest between the (personal/financial) interests of the DA and the duties under rule 3.8 that require prosecutors to act as ministers of justice and not just as advocates?
According to the story, Chambers told the newspaper that her bonus system is similar to incentive plans used by private employers. The problem is that prosecutors are not like lawyers in private practice. The rules of professional conduct impose on them different duties, particularly a duty to act in the best interest of justice. This means that the prosecutor has to make sure that justice is served, not just that people are convicted to keep the numbers up.
Everyone knows that most convictions in this country are achieved via plea bargains, but, the bonus system in Colorado encourages prosecutors to pursue trials in lieu of plea bargains to qualify for a bonus. Thus, the bonus system actually could encourage prosecutors to act against their duty as a minister of justice.
Am I missing something or is this institutionalizing a systems that by definition creates a conflict of interest between the (personal/financial) interests of the DA and the duties under rule 3.8 that require prosecutors to act as ministers of justice and not just as advocates?
According to the story, Chambers told the newspaper that her bonus system is similar to incentive plans used by private employers. The problem is that prosecutors are not like lawyers in private practice. The rules of professional conduct impose on them different duties, particularly a duty to act in the best interest of justice. This means that the prosecutor has to make sure that justice is served, not just that people are convicted to keep the numbers up.
Everyone knows that most convictions in this country are achieved via plea bargains, but, the bonus system in Colorado encourages prosecutors to pursue trials in lieu of plea bargains to qualify for a bonus. Thus, the bonus system actually could encourage prosecutors to act against their duty as a minister of justice.
Sunday, March 27, 2011
Discipline for lawyer who claimed she could "channel" the client's dead wife's spirit
A few months ago, I reported (here, here and here) on a case out of Arizona where a lawyer tried to convince her client that the client's dead wife's spirit had "come to her" and that she could communicate the wife's thoughts. Among other thoughts, the lawyer claimed the deceased wife wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.
The State Bar brought disciplinary charges against the attorney seeking disbarment but the Arizona Disciplinary Commission imposed only a one year suspension on the attorney. The State Bar then asked the Supreme Court to review the case and disbar the lawyer. The Legal Profession blog is reporting now that the Court sided with the Commission and imposed only a one year suspension.
The opinion is available here. The report of the Disciplinary Commission is attached here.
Thanks to the Legal Profession blog for the links.
The State Bar brought disciplinary charges against the attorney seeking disbarment but the Arizona Disciplinary Commission imposed only a one year suspension on the attorney. The State Bar then asked the Supreme Court to review the case and disbar the lawyer. The Legal Profession blog is reporting now that the Court sided with the Commission and imposed only a one year suspension.
The opinion is available here. The report of the Disciplinary Commission is attached here.
Thanks to the Legal Profession blog for the links.
What do you have to do to get disbarred in New Jersey?!
The Legal Profession blog has a short report on a recent case in which the Supreme Court of New Jersey decided not to disbar an attorney even though the attorney had already faced eight ethics complaints in the past, half of which had resulted in suspensions. To make it worse, it appears that the attorney did not even care to respond to the charges in four of those cases. To its credit, the Disciplinary Review Board had recommeded disbarment. I understand the value in providing second chances but after 4 suspensions and a recommendation by the Board to disbar... C'mon!
Friday, March 25, 2011
Follow up on Supreme Court oral argument in Turner v Rogers
In Turner v Rogers, the Supreme Court is considering whether there is a constitutional right to court-appointed counsel in civil contempt proceedings that can result in incarceration. The ScotUS blog has all the relevant documents and briefs. The transcript of the oral argument is available here.
Amanda Rice of the ScotUS blog reports that after the oral argument, Jesse Holland of the Associated Press reported that “the Court sounded reluctant to extend the right to a taxpayer-provided lawyer . . . to civil proceedings where a person faces jail time.” Similarly, Adam Liptak of the New York Times described the Justices as “appear[ing] frustrated” during the argument, as “[i]t seemed that there were procedural and practical problems with almost every potential ruling.”
Prof. Renee Newman Knake, of the Legal Ethics Forum, adds that Adam Liptak summarizes the argument in Justices Grapple With Issue of Right to Lawyers in Child Support Cases. The ABA filed an amicus brief saying yes, "that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time." Professors Ben Barton and Darryl Brown filed an amicus brief arguing no, that pro se reforms are the better alternative for ensuring justice in these types of cases.
For more comments on the case, go here and here.
Amanda Rice of the ScotUS blog reports that after the oral argument, Jesse Holland of the Associated Press reported that “the Court sounded reluctant to extend the right to a taxpayer-provided lawyer . . . to civil proceedings where a person faces jail time.” Similarly, Adam Liptak of the New York Times described the Justices as “appear[ing] frustrated” during the argument, as “[i]t seemed that there were procedural and practical problems with almost every potential ruling.”
Prof. Renee Newman Knake, of the Legal Ethics Forum, adds that Adam Liptak summarizes the argument in Justices Grapple With Issue of Right to Lawyers in Child Support Cases. The ABA filed an amicus brief saying yes, "that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time." Professors Ben Barton and Darryl Brown filed an amicus brief arguing no, that pro se reforms are the better alternative for ensuring justice in these types of cases.
For more comments on the case, go here and here.
Tuesday, March 22, 2011
Supreme Court to hear argument in case on right to attorney in civil contempt proceeding
Tomorrow the Supreme Court will hear oral arguments in Turner v. Rogers (formerly titled Turner v. Price) which asks whether an indigent client has a right to an attorney for civil contempt proceeding that could lead to jail time. Stay tuned for updates on the transcript and more.
Monday, March 21, 2011
Supreme Court reverses finding that prosecutor selected jury improperly
In a very short Per curiam opinion (available here), the United States Supreme Court has issued reversed the United States Court of Appeals for the Ninth Circuit's finding that a trial prosecutor had struck two members of the jury venire for race-based reasons. The defendant's motion for relief based on the prosecutor's conduct had been denied by the trial court and affirmed by the California Court of Appeal. After that court affirmed, the defendant sought habeas relief in federal court, but the District Court denied the motion. The Court of Appeals for the Ninth Circuit then reversed finding that "[t]he prosecutor’s proffered race-neutral bases for peremptorily striking the two African-American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African-American jurors were stricken, and the record reflected different treatment of comparably situated jurors."
The US Supreme Court, however, found this conclusion to be "as inexplicable as it is unexplained" and reversed. The case is Felkner v. Jackson and it is available here.
Thanks to the Legal Profession blog for the update.
The US Supreme Court, however, found this conclusion to be "as inexplicable as it is unexplained" and reversed. The case is Felkner v. Jackson and it is available here.
Thanks to the Legal Profession blog for the update.
Supreme Court grants cert in yet another prosecutorial misconduct case
The Supreme Court just announced it has granted review in a case called Rehberg v. Paulk which asks "whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages." The lower court's opinion is available here. As usual, the Supreme Court blog has all the information and links here, including the Petition for certiorari, and all the briefs and replies. Make sure you keep that link handy, since they keep updating it with documents as they are filed.
I have not had a chance to read the opinion or the petition for cert so I do not know the details but I have been speculating for a while that after all the prosecutorial misconduct scandals in 2009 (go here and scroll down for all my posts on prosecutorial misconduct), the Court has been looking for opportunities to express itself on the subject. It first granted review in the Pottawatomie case which eventually settled, and then Connick v Thompson, for which it heard oral arguments in the fall.
Rehberg is, therefore, the third case related to the issue of prosecutorial misconduct in two terms. For previous posts on Pottawatomie go here, here and here. For previous posts on Connick v Thompson, including links to the oral arguments, go here, here, here, here and here.
I have not had a chance to read the opinion or the petition for cert so I do not know the details but I have been speculating for a while that after all the prosecutorial misconduct scandals in 2009 (go here and scroll down for all my posts on prosecutorial misconduct), the Court has been looking for opportunities to express itself on the subject. It first granted review in the Pottawatomie case which eventually settled, and then Connick v Thompson, for which it heard oral arguments in the fall.
Rehberg is, therefore, the third case related to the issue of prosecutorial misconduct in two terms. For previous posts on Pottawatomie go here, here and here. For previous posts on Connick v Thompson, including links to the oral arguments, go here, here, here, here and here.
Thursday, March 17, 2011
Does using the plural "offices" when you only have one location violate the rules?
We have seen a number of cases where courts have found the use of "associates" in a firm's name deceptive if there is only one associate or if the attorney does not have any associates at all. A couple of days ago, I noticed a couple of attorneys refer to their firms as "The Law Offices of ....(so and so)..." I wonder if the word "offices" suggests there are multiple locations. Assuming there is only one, does the title of the firm violate the rules?
Ct finds communication among attorneys regarding possible malpractice claim by client is privileged
According to a story on the Ethical Quandary blog, the U.S. District Court for the Southern District of Ohio has rendered an important decision in the area of law firm risk management and attorney-client privilege. The court held that when lawyers within a firm communicate internally regarding the firm’s potential malpractice in an existing client’s matter, those communications are protected from later discovery by the client under the attorney-client privilege unless the client can establish good cause for discovery. The case is called Tattletale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP. For more on the story and a full summary of the case, go here.
DC Ct of Appeals reverses conviction because of prosecutorial misconduct but splits on whether prosecutors should be investigated
The blof of the Legal Times is reporting (here) that, in a 2 to 1 opinion, the District of Columbia Court of Appeals, has reversed a conviction after finding that federal prosecutors failed to timely turn over exculpatory information to the lawyers representing a man in a shooting case. However, the judges who voted for the majority split over whether the trial judge, Craig Iscoe, should inquire whether prosecutors in the U.S. Attorney’s Office for the District of Columbia committed an ethics violation by failing to provide the defendant's lawyers with information beneficial to his case. The case is called Tyree Beysean Miller v. US and the 75-page opinion is available here.
I haven't had time to read the long opinion myself, so I am relying on the news item, but it is hard to understand how you can find that there is prosecutorial misconduct and then not say that it should be investigated whether the misconduct is a violation of the professional rules. If this is an accurate description of what happened here, it is another example of a missed opportunity for a court to take prosecutorial misconduct seriously. For comments on this issue go here and here. For all the recent stories of prosecutorial misconduct - and, unfortunately, there are many, go here.
I haven't had time to read the long opinion myself, so I am relying on the news item, but it is hard to understand how you can find that there is prosecutorial misconduct and then not say that it should be investigated whether the misconduct is a violation of the professional rules. If this is an accurate description of what happened here, it is another example of a missed opportunity for a court to take prosecutorial misconduct seriously. For comments on this issue go here and here. For all the recent stories of prosecutorial misconduct - and, unfortunately, there are many, go here.
Wednesday, March 16, 2011
Podcast on social media
Here is a link to a radio show on the Legal Talk Network on how to (and how not to) use social media as a marketing tool.
Tuesday, March 15, 2011
North Carolina considers whether to allow non-lawyers to buy interests in law firms
According to a comment by popular New York blogger (and personal injury attorney) Eric Turkewitz, there is a bill pending in North Carolina that would allow non-lawyers to buy up to 49% interests in law firms which he argues "violates the age old prohibition on sharing legal fees with non-lawyers, and is one hell of a lousy idea." He makes a pretty convincing argument in his post which you can read in full by going here.
Friday, March 11, 2011
Should All Lawyer Scoldings Be Public?
Here is a link to a story in the Wall Street Journal law blog that asks whether all lawyer scoldings should be public. It says, in part:
"One most effective ways to deter bad behavior is to publicly expose those who are caught.
Yet, in most states, lawyers frequently are disciplined behind closed doors, through private admonitions or sanctions, rather than through formal, public censures or fines.
. . . . But Rodd Santomauro, the new executive director of HALT, a legal consumer advocacy group based in Washington, D.C., says . . . that “There should not be any private reprimands whatsoever when it comes to disciplining attorneys,” . . ."
"One most effective ways to deter bad behavior is to publicly expose those who are caught.
Yet, in most states, lawyers frequently are disciplined behind closed doors, through private admonitions or sanctions, rather than through formal, public censures or fines.
. . . . But Rodd Santomauro, the new executive director of HALT, a legal consumer advocacy group based in Washington, D.C., says . . . that “There should not be any private reprimands whatsoever when it comes to disciplining attorneys,” . . ."
The King of Torts is in trouble
Here is a report from about 2 weeks ago in The Wall Street Journal Law Blog on the saga of attorney Stanley Chesley, a very successful plaintiffs' lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career - many of them huge mass dissaster/multi-district litigation type cases.
I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case. I remember him as a nice guy. He was more involved in the negotiating part of the case, rather than the day to day preparation and discovery work - what I was working on mostly. I like to say that he was one of those guys who is into "practicing facts" rather than "practicing law", but that is another story.
In any case, here is what bothers me the most about this: here is a guy who has done a lot of good work over a long, successful career. He has helped many people. He also made lots and lots of money. At this point in his life, he does not need any more money, or fame or anything. Now his career and his reputation are in jeopardy. Say it ain't so, Stan!
As reported in the WSJ, Chesley’s attorneys said they planned to appeal to the Kentucky Supreme Court, which will make a final determination on the commissioner’s recommendation. The attorneys cited a federal probe of the case, which didn’t result in charges against Chesley. “His findings are directly contrary to the findings of federal authorities, who fully investigated this case and never considered Mr. Chesley a target of their investigation,” they said in a statement.
For more on the story go to the Abnormal Use blog.
I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case. I remember him as a nice guy. He was more involved in the negotiating part of the case, rather than the day to day preparation and discovery work - what I was working on mostly. I like to say that he was one of those guys who is into "practicing facts" rather than "practicing law", but that is another story.
In any case, here is what bothers me the most about this: here is a guy who has done a lot of good work over a long, successful career. He has helped many people. He also made lots and lots of money. At this point in his life, he does not need any more money, or fame or anything. Now his career and his reputation are in jeopardy. Say it ain't so, Stan!
As reported in the WSJ, Chesley’s attorneys said they planned to appeal to the Kentucky Supreme Court, which will make a final determination on the commissioner’s recommendation. The attorneys cited a federal probe of the case, which didn’t result in charges against Chesley. “His findings are directly contrary to the findings of federal authorities, who fully investigated this case and never considered Mr. Chesley a target of their investigation,” they said in a statement.
For more on the story go to the Abnormal Use blog.
Should experts in legal malpractice cases be limited to practicing lawyers? -- UPDATED
The Legal Malpractice law review blog is reporting on a recent case from Georgia that holds that expert witnesses in a legal malpractice case must be practicing lawyers. The court apparently ruled the expert in question was not qualified because he did not (1) represent entities or individuals in court; (2) draft or file pleadings in judicial proceedings; or (3) prepare the type of documents or perform the legal tasks at issue in the litigation. Here is the link to the story. The case is called Wilson v. McNeely.
The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice.
When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis.
Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary.
I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.
The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice.
When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis.
Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary.
I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.
Saturday, March 5, 2011
How not to practice law: charge money for nothing
My students will get a kick out of this story, published yesterday in the Legal Profession Blog, which deals with the topic we discussed in class this week.
Here is a quick reminder of a pretty easy to understand principle: you can't charge a fee and then not provide the services the fee was supposed to pay for. Duh!
This basic principle is illustrated in a decision of the Maryland Court of Appeals. The attorney was disbarred for doing just that. He collected fees in two cases, pocketed them and then did not perform the services. Note that in this scenario, there is yet another violation of the rules: since the fees were paid to perform future services the attorney was supposed to place them in the client trust account. Instead he pocketed the money (and used it for his own personal purposes).
Now here is the kicker. How much money do you think was worth getting disbarred for? The total amount: $1,100.
Maybe I should assign this case to my students because it actually illustrates two other principles I tell them about emphatically in class: (1) it does not matter what the conduct is, because of the lack of guidelines when it comes to sanction, you always risk disbarment. Is it really worth risking it for $1,000? And, (2) having said that, if there is one thing you can be 99% sure of in terms of sanctions it is that if you steal money from a client, it does not matter how much, you will likely get disbarred. And you should; period; end of story.
Here is a quick reminder of a pretty easy to understand principle: you can't charge a fee and then not provide the services the fee was supposed to pay for. Duh!
This basic principle is illustrated in a decision of the Maryland Court of Appeals. The attorney was disbarred for doing just that. He collected fees in two cases, pocketed them and then did not perform the services. Note that in this scenario, there is yet another violation of the rules: since the fees were paid to perform future services the attorney was supposed to place them in the client trust account. Instead he pocketed the money (and used it for his own personal purposes).
Now here is the kicker. How much money do you think was worth getting disbarred for? The total amount: $1,100.
Maybe I should assign this case to my students because it actually illustrates two other principles I tell them about emphatically in class: (1) it does not matter what the conduct is, because of the lack of guidelines when it comes to sanction, you always risk disbarment. Is it really worth risking it for $1,000? And, (2) having said that, if there is one thing you can be 99% sure of in terms of sanctions it is that if you steal money from a client, it does not matter how much, you will likely get disbarred. And you should; period; end of story.
Friday, March 4, 2011
Did She-Hulk violate the rules against solicitation of clients?
Law and the Multiverse is a blog that addresses legal issues in the alternate world of superheroes and villains. Aside from the superheroes' common connection with law enforcement and other aspects of the law, it turns out that some of them are actually lawyers in their alter-ego lives. I am not a comic books kind of guy, but if I remember correctly Dare-Devil is a lawyer and, as I just learned, so is "She Hulk." (Actually, I have to admit I had never heard of "She Hulk" to begin with, but that is neither here nor there....).
In any case, here is a link to a recent discussion on whether "She Hulk" violated the rules against solicitation of clients when, after saving a victim from an attack by some villains, she offered to represent the victim in a case against other superheroes who did not help her.
PS: I will admit to having watched a few episodes of Birdman, Attorney at Law, which is a pretty crazy show.
In any case, here is a link to a recent discussion on whether "She Hulk" violated the rules against solicitation of clients when, after saving a victim from an attack by some villains, she offered to represent the victim in a case against other superheroes who did not help her.
PS: I will admit to having watched a few episodes of Birdman, Attorney at Law, which is a pretty crazy show.
Thursday, March 3, 2011
Prosecution for jury nullification
When discussing the limits of proper argument by lawyers in front of a jury I ask my students whether a lawyer should be disciplined for asking the jury to disregard the law. The approach to the discussion may change this year given a story published by the New York Times this week. In it, the NYT reports that prosecutors in New York have taken the unusual step of having a jury nullification advocate indicted on a charge that distributing of pamphlets informing jurors of their right to disregard the law at the courthouse entrance violates a law against jury tampering.
Go here for the story in the New York Times and here for the story in the Wall Street Journal law blog.
Go here for the story in the New York Times and here for the story in the Wall Street Journal law blog.
Wednesday, March 2, 2011
Billing methods
Yesterday I discussed different billing methods with my students. We spent most of our time talking about contingency fees, but we also mentioned hourly fees and flat fees. We were all familiar with these methods. I have to confess, though, that, until today, I had never heard of anyone billing "by the inch," ... meaning by how thick the file is. Here is a story about an expert witness who claimed he charged $150 per inch of paper....
Proposed bill to enforce ethics rules at the Supreme Court
In the wake of a spirited debate about Justices Scalia and Thomas' decisions to appear before conservative groups and legislators, which included a letter signed by more than 100 law professors (see here), two Democratic lawmakers have proposed a bill that would require a process for taking in ethics complaints about the justices of the Supreme Court, and for investigating those complaints. It would require justices to explain their decisions to recuse or not recuse from a case, and if a justice has turned down a motion to disqualify, it would allow the rest of the Court to disqualify the justice. For more on the story go here.
More on the finding that Feinberg is not neutral in BP oil spill case
About a month ago, I reported that a federal judge ruled that it was misleading for Ken Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. See here. As a result, the website for the Gulf Coast Claims Facility now states the Feinberg is acting "for and on behalf of BP."
According to an updated in the Legal Ethics Forum, the website now states "The Gulf Coast Claims Facility ("GCCF") is the official way for Individuals and Businesses to file claims for costs and damages incurred as a result of the oil discharges due to the Deepwater Horizon Incident on April 20, 2010 ("the Spill"). The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), who is responsible for all decisions relating to the administration and processing of claims submitted to the GCCF. Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration Production Inc. in fulfilling BP's statutory obligations as a responsible party under the Oil Pollution Act of 1990."
According to an updated in the Legal Ethics Forum, the website now states "The Gulf Coast Claims Facility ("GCCF") is the official way for Individuals and Businesses to file claims for costs and damages incurred as a result of the oil discharges due to the Deepwater Horizon Incident on April 20, 2010 ("the Spill"). The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), who is responsible for all decisions relating to the administration and processing of claims submitted to the GCCF. Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration Production Inc. in fulfilling BP's statutory obligations as a responsible party under the Oil Pollution Act of 1990."
How not to practice law: try to help your client by breaking the law
I usually make fun of the lawyer's whose stories end up in my running list of "how not to practice law." This is not one of those stories. This is a sad story of a lawyer who meant well but really did not think it through when deciding how to try to help his client. Here is the story, via Don Lundberg and Mike Frisch of the Legal Profession blog:
The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant and devised a plan to destroy the informant's credibility by showing that he was still dealing drugs. The attorney arranged for two juveniles to purchase marijuana from the informant and assured them that the conduct was legal. The attorney sought the $200 from the client's mother, telling her that it was a litigation cost, and gave the money to the juveniles to fund the purchase.
The juveniles bought the drugs and the attorney recorded the transaction. However, the juveniles only used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney then told the juveniles to hold on to the evidence but they smoked it instead. Then the attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. Instead, the attorney was arrested and charged. He was convicted and the Indiana Court of Appeals affirmed.
The court concluded that the attorney did not stand on "the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy." The court concluded that "the legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense his client...This is not a close case."
The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant and devised a plan to destroy the informant's credibility by showing that he was still dealing drugs. The attorney arranged for two juveniles to purchase marijuana from the informant and assured them that the conduct was legal. The attorney sought the $200 from the client's mother, telling her that it was a litigation cost, and gave the money to the juveniles to fund the purchase.
The juveniles bought the drugs and the attorney recorded the transaction. However, the juveniles only used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney then told the juveniles to hold on to the evidence but they smoked it instead. Then the attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. Instead, the attorney was arrested and charged. He was convicted and the Indiana Court of Appeals affirmed.
The court concluded that the attorney did not stand on "the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy." The court concluded that "the legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense his client...This is not a close case."
Monday, February 28, 2011
How not to bill a client
Tomorrow in class I will start discussing issues related to fees. Right on cue, the website "Say what?!" - which tells funny but true stories of lawyers in Texas - posted this story:
[A lawyer from Houston] has clients who were engaged in a declaratory judgment action filed in another state. He asked outside counsel to conduct “an expansive review of possible jurisdictional issues related to this particular battle which included a number of non- U.S. business entities.” However, when he received the billing statement, he noticed the following provision: Per instructions ...., conduct an expensive search into any and all possible jurisdictional issues."
[A lawyer from Houston] has clients who were engaged in a declaratory judgment action filed in another state. He asked outside counsel to conduct “an expansive review of possible jurisdictional issues related to this particular battle which included a number of non- U.S. business entities.” However, when he received the billing statement, he noticed the following provision: Per instructions ...., conduct an expensive search into any and all possible jurisdictional issues."
Monday, February 21, 2011
How not to practice law: advertise you have "associates" when, in fact, you don't
The Legal Profession blog is reporting on a new case involving a practice I have discussed before in this blog: the use of the phrase "and Associates" as part of a firm name when the firm has only one lawyer. There are a number of decisions out there that find this to be misleading and, thus, in violation of the rules of conduct.
The most recent case on this comes from Virginia where a three-judge court has imposed a suspension of 30 days followed by a year of probation. The case is available here. The attorney in question advertised his practice as himself "& Associates" when in fact he had a solo practice. To make matters worse, he also had a web page in which a non-attorney was presented as a member of the firm and in which he listed non-existent firm practice groups.
Obviously, this case involved more than the casual use of the phrase "and associates." This was a deliberate attempt to diceive the public. Given those circumstances, and the fact that there were other instances of conduct that violated other rules of conduct, I would have imposed a tougher sanction.
The most recent case on this comes from Virginia where a three-judge court has imposed a suspension of 30 days followed by a year of probation. The case is available here. The attorney in question advertised his practice as himself "& Associates" when in fact he had a solo practice. To make matters worse, he also had a web page in which a non-attorney was presented as a member of the firm and in which he listed non-existent firm practice groups.
Obviously, this case involved more than the casual use of the phrase "and associates." This was a deliberate attempt to diceive the public. Given those circumstances, and the fact that there were other instances of conduct that violated other rules of conduct, I would have imposed a tougher sanction.
Sunday, February 20, 2011
How not to practice (criminal defense) law: decide for the jury whether your own client is guilty
In last week's episode of the TV show Harry's Law, the main character - Harriet - finds out during trial that her client is actually guilty. Having thought he was innocent all along, Harriet feels she can't continue to represent the client. She asks the judge for permission to withdraw and says to the judge that she will "tank" the case if she is forced to continue but the judge denies her request to withdraw. Harriet does tell the jury in no uncertain terms that her client did, in fact, kill the victim. The judge declares a mistrial and reports Harriet to the disciplinary authorities.
In a case of "life imitating art" (to the extent that "Harry's Law" is art), the Legal Profession blog is reporting on a case in which the Kansas Supreme Court has reversed a conviction based on very similar conduct by a criminal defense lawyer.
In this case, the lawyer told the judge that he thought a surveillance video depicted his client in the act of the crime. Given that the video was not clear, the court found the attorney "ignore[d] the separation of duties in a criminal prosecution", particularly the fact that the "duty as defense counsel [is] to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense." The court concluded that the attorney "exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty."
In a case of "life imitating art" (to the extent that "Harry's Law" is art), the Legal Profession blog is reporting on a case in which the Kansas Supreme Court has reversed a conviction based on very similar conduct by a criminal defense lawyer.
In this case, the lawyer told the judge that he thought a surveillance video depicted his client in the act of the crime. Given that the video was not clear, the court found the attorney "ignore[d] the separation of duties in a criminal prosecution", particularly the fact that the "duty as defense counsel [is] to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense." The court concluded that the attorney "exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty."
Wednesday, February 16, 2011
On the need to make sure the client knows the representation has ended
When discussing the formation of the attorney-client relationship in class, we talk about the Togstad case in which the relationship was formed out of a misunderstaning. I stress that it is very important for lawyers to be clear when they decide to reject a prospective client.
Having said that, I usually remind my students that it is equally important to be clear with current clients about when the representation actually ends.
A new case our of the Supreme Court of New York called McCann v. Manheimer, exemplifies this last point. In this case, the plaintiff filed suit for legal malpractice against her former attorneys. Defendant attorneys moved to dismiss arguing that the suit was barred by the applicable statute of limitations because it had been filed more than three years after the termination of the attorney-client relationship. Defendants alleged that the attorney-client relationship ended on October 28, 2005, at or around the time when they mailed a letter to plaintiff terminating the attorney-client relationship. Plaintiff, however, alleged that she never received the letter, and that she understood the attorney-client relationship continued through March, 2007. Despite New York law providing that a letter that has been mailed is presumed to have been received, the Court held that plaintiff had a raised a triable issue of fact and denied the motion to dismiss.
Conclusion: lawyers not only have to be clear as to when the representation ends; they have to make sure the message is received.
Thanks to the Legal Malpractice Law Review for the link
Having said that, I usually remind my students that it is equally important to be clear with current clients about when the representation actually ends.
A new case our of the Supreme Court of New York called McCann v. Manheimer, exemplifies this last point. In this case, the plaintiff filed suit for legal malpractice against her former attorneys. Defendant attorneys moved to dismiss arguing that the suit was barred by the applicable statute of limitations because it had been filed more than three years after the termination of the attorney-client relationship. Defendants alleged that the attorney-client relationship ended on October 28, 2005, at or around the time when they mailed a letter to plaintiff terminating the attorney-client relationship. Plaintiff, however, alleged that she never received the letter, and that she understood the attorney-client relationship continued through March, 2007. Despite New York law providing that a letter that has been mailed is presumed to have been received, the Court held that plaintiff had a raised a triable issue of fact and denied the motion to dismiss.
Conclusion: lawyers not only have to be clear as to when the representation ends; they have to make sure the message is received.
Thanks to the Legal Malpractice Law Review for the link
Monday, February 14, 2011
Indiana Supreme Court tries to clarify whether flat fees can be non-refundable
The Indiana Supreme Court has issued a short opinion on whether flat fees can be non-refundable. I have commented on the confused state of the law regarding this issue here and here. Also, I reported not too long ago that Tennessee and Minnesota have decided to allow non-refundable flat fees (here and here).
In the Indiana case, In the Matter of Heather McClure O'Farrell (available here), the court imposed discipline on an attorney for violating the rule that requires that fees be reasonable. Apparently, what made the fees unreasonable in this case was that they were non-refundable. But it is not as straightforward as that. The real problem was not that the fees were non-refundable, but that the attorney told the client they were non-refundable "no matter what."
In other words, the court suggests that a flat fee can be non-refundable as long as the task for which it pays is completed. What this means is that if the task is completed in less time than originally expected the attorney may keep the value of the time saved.
If the task is not completed, however, as when a client dismisses the attorney before the task is completed, the attorney must refund the portion of the fee that is "unearned."
On this last issue, the matter gets more complicated also since the court recognized that "we are not prepared to hold that some amount of a flat fee must be returned in all cases in which the attorney-client relationship ends before the work contracted for is completed."
In other words, there can be cases where the attorney may be justified to keep the fee even if the task is not completed.
So, are you keeping score? A flat fee can be non-refundable as long as there is nothing to refund; but if there is something to refund, it must be, unless there is a good reason not to. Easy.
And then, here is an interesting point. Given the specific facts of the question, the court found that there was no evidence to support the claim that the attorney had violated her duty to return unearned fees.
So, the attorney was disciplined for charging an unreasonable fee only that the fee was not unreasonable because it was non-refundable -since that is allowed - nor was it unreasonable because she did not refund it -since there was no evidence to prove that... Why was she disciplined for exactly then?
Thanks to the Legal Profession Blog for the update.
In the Indiana case, In the Matter of Heather McClure O'Farrell (available here), the court imposed discipline on an attorney for violating the rule that requires that fees be reasonable. Apparently, what made the fees unreasonable in this case was that they were non-refundable. But it is not as straightforward as that. The real problem was not that the fees were non-refundable, but that the attorney told the client they were non-refundable "no matter what."
In other words, the court suggests that a flat fee can be non-refundable as long as the task for which it pays is completed. What this means is that if the task is completed in less time than originally expected the attorney may keep the value of the time saved.
If the task is not completed, however, as when a client dismisses the attorney before the task is completed, the attorney must refund the portion of the fee that is "unearned."
On this last issue, the matter gets more complicated also since the court recognized that "we are not prepared to hold that some amount of a flat fee must be returned in all cases in which the attorney-client relationship ends before the work contracted for is completed."
In other words, there can be cases where the attorney may be justified to keep the fee even if the task is not completed.
So, are you keeping score? A flat fee can be non-refundable as long as there is nothing to refund; but if there is something to refund, it must be, unless there is a good reason not to. Easy.
And then, here is an interesting point. Given the specific facts of the question, the court found that there was no evidence to support the claim that the attorney had violated her duty to return unearned fees.
So, the attorney was disciplined for charging an unreasonable fee only that the fee was not unreasonable because it was non-refundable -since that is allowed - nor was it unreasonable because she did not refund it -since there was no evidence to prove that... Why was she disciplined for exactly then?
Thanks to the Legal Profession Blog for the update.
Wednesday, February 9, 2011
Top ten reasons to oppose mandatory CLE
A few days ago I reported that there is a petition pending before the Illinois Supreme Court asking it to revoke its rules requiring minimum continuing legal education. (See here) Today, in a letter to the editor published in the Chicago Daily Bulletin, the attorney who filed the petition lists the following "top ten" reasons to support the petition:
First, one simply cannot demonstrate that MCLE [madatory continuing legal education] enhances professional performance.
Second, one simply cannot demonstrate that MCLE has resulted in any benefit to the public, although touted to do so.
Third, one simply cannot demonstrate that MCLE is justified in terms of the time and expense required to meet compliance requirements.
Fourth, in purporting to comply with the requirements imposed by the various jurisdictions, participants often cheat or falsify compliance reports.
Fifth, instructors offered by providers are often ill-equipped to truly "educate."
Sixth, the real beneficiaries of MCLE are bar associations and other provider organizations and neither the profession nor the public.
Seventh, MCLE is inherently discriminatory. The little guy gets it once again.
Eighth, the time and expense devoted to MCLE often detracts from one's inclination and ability to contribute pro bono services.
Ninth, the notion that MCLE enhances the ethics of our profession is bogus.
Tenth, while MCLE may offer the responsible courts a "feel good" sensation and enhance "perception," the fact is that MCLE is laden with hypocrisy.
First, one simply cannot demonstrate that MCLE [madatory continuing legal education] enhances professional performance.
Second, one simply cannot demonstrate that MCLE has resulted in any benefit to the public, although touted to do so.
Third, one simply cannot demonstrate that MCLE is justified in terms of the time and expense required to meet compliance requirements.
Fourth, in purporting to comply with the requirements imposed by the various jurisdictions, participants often cheat or falsify compliance reports.
Fifth, instructors offered by providers are often ill-equipped to truly "educate."
Sixth, the real beneficiaries of MCLE are bar associations and other provider organizations and neither the profession nor the public.
Seventh, MCLE is inherently discriminatory. The little guy gets it once again.
Eighth, the time and expense devoted to MCLE often detracts from one's inclination and ability to contribute pro bono services.
Ninth, the notion that MCLE enhances the ethics of our profession is bogus.
Tenth, while MCLE may offer the responsible courts a "feel good" sensation and enhance "perception," the fact is that MCLE is laden with hypocrisy.
Friday, February 4, 2011
More on the finding that Feinberg is not "neutral"
Yesterday I reported (here) that a federal judge ruled that it was misleading for Ken Feinberg, the administrator of the Gulf Coast Claims Fund call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. In his comment in the Legal Ethics Forum, Monroe Freedman concludes that the opinion "confirms that Feinberg has been engaging in unethical conduct that has been misleading claimants and posing a serious threat to the administration of justice.” Here is a link to a short comment and discussion on the wide-ranging implications of the BP and Feinberg arrangement. The PopTort blog also picks it up here.
How private is your privacy on Facebook?
Yesterday I reported on a recent case that held a litigant had waived his attorney-client privilege by disclosing information by e-mail and in a blog. At least in part, this was because the e-mail and/or blog were considered a "public." Interestingly, I just saw a couple of stories about cases in which courts are allowing discovery of information posted online in "areas" thare are supposed to be more "private." Proving again, that there is nothing private on the internet, as one of the stories points out "increasingly, judges in civil cases are granting access to online caches that had formerly been considered off-limits." Go here and here to read more.
Thursday, February 3, 2011
California Court Finds Client’s E-Mails and Blog Postings Regarding Conversations with Counsel Waive Attorney-Client Privilege
This is not entirely surprising since at least some jurisdictions have held that misadvertent disclosure of privileged information operates as a waiver of the privilege. Story here.
Judge finds Ken Feinberg is not "neutral"
About three weeks ago I reported (here) on an on-going debate related to Ken Feinberg, the administrator of the Gulf Coast Claims Facility. Several blogs, organizations and articles have argued that Feinberg is acting under a conflict of interest because he was not really simply managing the fund, he was getting paid $850,000 a month by BP to settle claims against BP and obtain releases of liabity for BP.
Now a federal judge has agreed with these allegations and ruled yesterday that it was misleading for Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. The judge has ordered Feinberg to clearly disclose his role as acting for and on behalf of BP. Moreover, Feinberg must "[a]dvise claimants that the 'pro bono' attorneys and 'community representatives' retained to assist GCCF claimants are being compensated directly or indirectly by BP."
In the end, the judge has ordered BP, through its agents Ken Feinberg and any of their representatives, in any of their oral or written communications with claimants (including but not limited to websites, telephone scripts, personal contacts, release documents and correspondence) to
(1) Refrain from contacting directly any claimant that they know or reasonably should know
is represented by counsel, whether or not said claimant has filed a lawsuit or formal claim;
(2) Refrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their
representatives), as “neutral” or completely “independent” from BP. . . .
(3) Begin any communication with a putative class member with the statement that the
individual has a right to consult with an attorney of his/her own choosing prior to accepting any
settlement or signing a release of legal rights.
(4) Refrain from giving or purporting to give legal advice to unrepresented claimants,
including advising that claimants should not hire a lawyer.
(5) Fully disclose to claimants their options under OPA if they do not accept a final payment, including filing a claim in the pending MDL 2179 litigation.
and, (6) Advise claimants that the “pro bono” attorneys and “community representatives”
retained to assist GCCF claimants are being compensated directly or indirectly by BP.
The judge's opinion is available here.
For a brief discussion of the opinion go to the PopTort blog, Legal Ethics Forum and the Wall Street Journal Law Blog.
Now a federal judge has agreed with these allegations and ruled yesterday that it was misleading for Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. The judge has ordered Feinberg to clearly disclose his role as acting for and on behalf of BP. Moreover, Feinberg must "[a]dvise claimants that the 'pro bono' attorneys and 'community representatives' retained to assist GCCF claimants are being compensated directly or indirectly by BP."
In the end, the judge has ordered BP, through its agents Ken Feinberg and any of their representatives, in any of their oral or written communications with claimants (including but not limited to websites, telephone scripts, personal contacts, release documents and correspondence) to
(1) Refrain from contacting directly any claimant that they know or reasonably should know
is represented by counsel, whether or not said claimant has filed a lawsuit or formal claim;
(2) Refrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their
representatives), as “neutral” or completely “independent” from BP. . . .
(3) Begin any communication with a putative class member with the statement that the
individual has a right to consult with an attorney of his/her own choosing prior to accepting any
settlement or signing a release of legal rights.
(4) Refrain from giving or purporting to give legal advice to unrepresented claimants,
including advising that claimants should not hire a lawyer.
(5) Fully disclose to claimants their options under OPA if they do not accept a final payment, including filing a claim in the pending MDL 2179 litigation.
and, (6) Advise claimants that the “pro bono” attorneys and “community representatives”
retained to assist GCCF claimants are being compensated directly or indirectly by BP.
The judge's opinion is available here.
For a brief discussion of the opinion go to the PopTort blog, Legal Ethics Forum and the Wall Street Journal Law Blog.
Illinois Supreme Court to consider eliminating mandatory CLE?
The Chicago Daily Law Bulletin is reporting today that a former member of the Attorney Registration and Disciplinary Commission Review Board and chairman of the Judicial Inquiry Board has filed a petition before the Illinois Supreme Court asking it to revoke its rules requiring minimum continuing legal education for the state's lawyers.
The petition argues that mandatory participation in CLE programs is a costly and ineffective exercise not shown to enhance professional competence and that there is no evidence that mandatory participation in CLE provides any public or professional benefit.
A pre-hearing conference before an ARDC Hearing Board panel member is set for May 6.
The petition argues that mandatory participation in CLE programs is a costly and ineffective exercise not shown to enhance professional competence and that there is no evidence that mandatory participation in CLE provides any public or professional benefit.
A pre-hearing conference before an ARDC Hearing Board panel member is set for May 6.
Monday, January 31, 2011
Fifth Circuit issues opinion on constitutionality of advertising rules
The Court of Appeals for the Fifth Circuit has issued an opinon (available here) on the constitutionality of lawyer advertising rules in Louisiana. Here is a list of the rules that were challenged on appeal:
Rule 7.2(c)(1)(D) prohibiting communications that “contain[] a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request;”
Rule 7.2(c)(1)(E) prohibiting communications that “promise[] results;”
Rule 7.2(c)(1)(I) prohibiting communications that “include[] a portrayal of a client by a non-client without disclaimer of such, as required by Rule 7.2(c)(10), or the depiction of any events or scenes or pictures that are not actual or authentic without disclaimer of such, as required by Rule 7.2(c)(10);”
Rule 7.2(c)(1)(J) prohibiting communications that “include[] the portrayal of a judge or a jury;”
Rule 7.2(c)(1)(L) prohibiting communications that “utilize[] a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter;”
Rule 7.2(c)(10) requiring “[a]ny words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly.”
Thanks to the Legal Ethics Forum for the update and links.
Rule 7.2(c)(1)(D) prohibiting communications that “contain[] a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request;”
Rule 7.2(c)(1)(E) prohibiting communications that “promise[] results;”
Rule 7.2(c)(1)(I) prohibiting communications that “include[] a portrayal of a client by a non-client without disclaimer of such, as required by Rule 7.2(c)(10), or the depiction of any events or scenes or pictures that are not actual or authentic without disclaimer of such, as required by Rule 7.2(c)(10);”
Rule 7.2(c)(1)(J) prohibiting communications that “include[] the portrayal of a judge or a jury;”
Rule 7.2(c)(1)(L) prohibiting communications that “utilize[] a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter;”
Rule 7.2(c)(10) requiring “[a]ny words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly.”
Thanks to the Legal Ethics Forum for the update and links.
Sunday, January 30, 2011
Supreme Court Update
Prof. Renee Newman Knake has posted an update on the Supreme Court's 2010 term cases on the law of lawyering here. She provides links to the opinions of the the cases that have been decided already and links to more information on those that are pending. For all relevant documents, including briefs and lower court opinion on all the cases you can go to the ScotUS blog here (where you can use the search function or click on "case files").
Friday, January 28, 2011
Article on ethical issues regarding use of "social media"
The most recent edition of the ABA Journal has an article on ethical issues regarding the use of social media. You can read it online by going here.
Wednesday, January 26, 2011
How not to practice law: pretend to be a doctor
Popular New York blogger Eric Turkewitz brings us an interesting story of a lawyer in a workers' compensation case who tried to play doctor in one of his cases. See here. In this case, a worker suffered an accident and his leg needed to be amputated. In order to defend against a claim, the lawyer for the defendant argued that the amputation was "elective." What is impressive is that the lawyer did this by filing an affidavit in which the lawyer, not a doctor or medical expert, argued under oath the amputation was not necessary. As the court explained, the affidavit "lacked any competent medical evidence and contained only unsupported allegations in an attempt to create issues of fact."
How not to practice law: try to influence a judge
The St Louis Post Dispatch is reporting (here) that a prosecutor has been reprimanded for causing a mistrial in a case he was not involved. He caused the mistrial by sending the judge in the case a note that stated "Judge, you need to convict this guy. I'll explain later." The judge did not appreciate it. He declared a mistrial and reported the prosecutor to the disciplinary authorities.
Can the state disbar an attorney who was not admitted to practice in the first place?
The Legal Profession Blog is reporting today that the Maryland Court of Appeals disbarred an attorney who had never been admitted in that jurisdiction.
This may sound a bit odd -after all, what authority or "jurisdiction" can a state have over someone who was never admitted? - but I don't think it is that uncommon to hear about states imposing discipline on attorneys who are not admitted in the state. This happens, of course, when a person is trying to practice law in a state without a license. But it does raise an interesting question, assuming the state has, in addition, to the rules of conduct, a specific statute that makes it illegal to practice law without a license, why bother imposing sanctions?
In the Maryland case, the court answers the question this way: "It is of no consequence that [the attorney] has never been admitted to the Maryland Bar." The order "operates as an immediate directive that [the attprney] 'promptly notify the disciplinary authority in each jurisdiction in which [she] is admitted to practice of the disciplinary sanction imposed by [this Court].'"
This may sound a bit odd -after all, what authority or "jurisdiction" can a state have over someone who was never admitted? - but I don't think it is that uncommon to hear about states imposing discipline on attorneys who are not admitted in the state. This happens, of course, when a person is trying to practice law in a state without a license. But it does raise an interesting question, assuming the state has, in addition, to the rules of conduct, a specific statute that makes it illegal to practice law without a license, why bother imposing sanctions?
In the Maryland case, the court answers the question this way: "It is of no consequence that [the attorney] has never been admitted to the Maryland Bar." The order "operates as an immediate directive that [the attprney] 'promptly notify the disciplinary authority in each jurisdiction in which [she] is admitted to practice of the disciplinary sanction imposed by [this Court].'"
Friday, January 21, 2011
Dept of Justice Creates Professional Misconduct Review Unit
Long time readers of this blog may remember that I argued that the number one professional responsibility story of 2009 (and to a certain extent 2010 also) was prosecutorial misconduct. There seemed to be an unusually high number of important cases and news accounts of prosecutorial misconduct during the past year and a half. As a consequence, early in 2010 the Federal Dept. of Justice issued some guidance memos for all federal prosecutors regarding their obligations when it comes to sharing information with criminal defense lawyers. Go here for my old posts on this and here for all my posts on prosecutorial misconduct.
Continuing the U.S. Justice Department's efforts, Attorney General Eric Holder announced today the creation of a team of lawyers that will review cases of attorney misconduct. The Professional Misconduct Review Unit will examine misconduct findings made by the department's Office of Professional Responsibility. Holder said the new unit will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct.
Go here for the full story.
Not everyone agrees this development is good news, though. Over at the Legal Ethics Forum, Professor Stephen Gillers argues: "I see the change as making discipline harder by introducing an additional layer of (veto power) review above OPR. The change does centralize reporting of serious misconduct, which is good, but the rest of it is not good. Why not just strengthen OPR and give it the same referral authority to state disciplinary bodies? Indeed, why not bring an independent voice into OPR, perhaps removing the AG's authority? Further, the new unit cannot review an OPR finding of no intentional or reckless misconduct, only findings that there was such misconduct. So a weak OPR can block state reporting. And when OPR find intentional wrongdoing, the new unit can override that decision."
Go here to see the full discussion at the Legal Ethics Forum.
Continuing the U.S. Justice Department's efforts, Attorney General Eric Holder announced today the creation of a team of lawyers that will review cases of attorney misconduct. The Professional Misconduct Review Unit will examine misconduct findings made by the department's Office of Professional Responsibility. Holder said the new unit will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct.
Go here for the full story.
Not everyone agrees this development is good news, though. Over at the Legal Ethics Forum, Professor Stephen Gillers argues: "I see the change as making discipline harder by introducing an additional layer of (veto power) review above OPR. The change does centralize reporting of serious misconduct, which is good, but the rest of it is not good. Why not just strengthen OPR and give it the same referral authority to state disciplinary bodies? Indeed, why not bring an independent voice into OPR, perhaps removing the AG's authority? Further, the new unit cannot review an OPR finding of no intentional or reckless misconduct, only findings that there was such misconduct. So a weak OPR can block state reporting. And when OPR find intentional wrongdoing, the new unit can override that decision."
Go here to see the full discussion at the Legal Ethics Forum.
Monday, January 17, 2011
Why are lawyers who are convicted of tax evasion treated more leniently than lawyers who steal?
I have often discussed my concerns regarding inconsistencies in sanctions imposed for different types of conduct and for the same conduct among different jurisdictions (go here and scroll down for examples). When I discuss this issue during the first week of classes, I sometimes assign a case of a lawyer who was convicted of tax evasion and a case of a lawyer who was found to have misappropriated client funds. The lawyer convicted of tax evasion was treated much more leniently.
Over at the Legal Ethics Forum, Prof. Stephen Gillers is asking why this is the case. Go here to read his comment and the responses to it.
Over at the Legal Ethics Forum, Prof. Stephen Gillers is asking why this is the case. Go here to read his comment and the responses to it.
New NY Times article on litigation lending
As I reported a couple of days ago, last November the New York Times published an article (available here) on entities that lend money to litigants in exchange for an assignment of an amount of the potential proceeds of the litigants' legal action. The article generated an interesting discussion. Go here for links.
Today, the New York Times published a new article on the issue (available here). It states, in part,
The business of lending to plaintiffs arose over the last decade, part of a trend in which banks, hedge funds and private investors are putting money into other people’s lawsuits. But the industry, which now lends plaintiffs more than $100 million a year, remains unregulated in most states, free to ignore laws that protect people who borrow from most other kinds of lenders. Unrestrained by laws that cap interest rates, the rates charged by lawsuit lenders often exceed 100 percent a year, according to a review by The New York Times and the Center for Public Integrity. Furthermore, companies are not required to provide clear and complete pricing information — and the details they do give are often misleading. A growing number of lawyers, judges and regulators say that the regulatory vacuum is allowing lawsuit lenders to siphon away too much of the money won by plaintiffs.
Unfortunately, as I reported a couple of days ago, the Illinois legislature defeated a proposal to regulate the industry. See here.
For a comment on today's NYT article go to Legal Ethics Forum, where Prof. Stephen Gillers argues that "[m]issing from the article is recognition that that today, without LFCs, we still have an unregulated market in which the needy plaintiff can sell her claim at a discount. It is called settlement and the claim can only be sold to one buyer, the defendant, who will also want a big discount, bigger if the plaintiff is especially in need." For his full comment and replies by others go here.
Today, the New York Times published a new article on the issue (available here). It states, in part,
The business of lending to plaintiffs arose over the last decade, part of a trend in which banks, hedge funds and private investors are putting money into other people’s lawsuits. But the industry, which now lends plaintiffs more than $100 million a year, remains unregulated in most states, free to ignore laws that protect people who borrow from most other kinds of lenders. Unrestrained by laws that cap interest rates, the rates charged by lawsuit lenders often exceed 100 percent a year, according to a review by The New York Times and the Center for Public Integrity. Furthermore, companies are not required to provide clear and complete pricing information — and the details they do give are often misleading. A growing number of lawyers, judges and regulators say that the regulatory vacuum is allowing lawsuit lenders to siphon away too much of the money won by plaintiffs.
Unfortunately, as I reported a couple of days ago, the Illinois legislature defeated a proposal to regulate the industry. See here.
For a comment on today's NYT article go to Legal Ethics Forum, where Prof. Stephen Gillers argues that "[m]issing from the article is recognition that that today, without LFCs, we still have an unregulated market in which the needy plaintiff can sell her claim at a discount. It is called settlement and the claim can only be sold to one buyer, the defendant, who will also want a big discount, bigger if the plaintiff is especially in need." For his full comment and replies by others go here.
Conflicts of interest in handling of the Gulf Coast Claims Fund?
There is a debate brewing related to the Gulf Coast Claims Facility, administered by Ken Feinberg. Mr. Feinberg’s firm, Feinberg Rozen, is being paid $850,000 a month by BP to settle claims against BP and then release BP from liability BP. Several blogs, organizations and articles have argued that Feinberg is acting under a conflict of interest.
For example, here is a letter by the Center for Justice and Democracy to the Attorney Generals of Alabama, Louisiana, Florida, Mississippi and Texas arguing that "these conflicts of interest raise urgent concerns about the integrity of the GCCF process and require a thorough and immediate investigation before individuals and businesses are pressured into accepting final settlements and permanently signing away their rights."
For more on the issue go here, here, and here. Finally, for some comments on the subject by professional reposonsibility scholars go to the Legal Ethics Forum.
For example, here is a letter by the Center for Justice and Democracy to the Attorney Generals of Alabama, Louisiana, Florida, Mississippi and Texas arguing that "these conflicts of interest raise urgent concerns about the integrity of the GCCF process and require a thorough and immediate investigation before individuals and businesses are pressured into accepting final settlements and permanently signing away their rights."
For more on the issue go here, here, and here. Finally, for some comments on the subject by professional reposonsibility scholars go to the Legal Ethics Forum.
Friday, January 14, 2011
Illinois legislature rejects proposal to regulate litigation financing companies
Last November, I reported that the Illinois legislature was set to discuss Senate Bill 3322 which attempted to regulate entities that lend money to litigants in exchange for an assignment of an amount of the potential proceeds of the litigants' legal action. This coinicided with an article on the subject in the New York Times (See here.) and an interesting discussion of the legal and ethical issues that relate to the litigation loan industry in Room for Debate, the Legal Ethics Forum and The Wall Street Journal Law Blog.
The proposed legislation in Illinois was defeated today, though. The Chicago Daily Bulletin is reporting that Senate Bill 3322 failed to get the support it needed to make it out of this year's veto session. Rep. Louis I. Lang is quoted as saying that the funding entities now "will be able to charge 1,000 percent interest. They can do anything they want. No consumer protections at all."
The civil litigation funding industry has been providing its services in Illinois for more than a decade without regulation. Here are the highlights of the failed proposed legislation
-- legal funding companies would be required to be licensed by, and to give annual reports to, the Illinois Department of Financial and Professional Regulation
-- lenders would be required to provide plaintiffs with a detailed contract and a five-day window to cancel their contract
-- there would be criminal and civil penalties for individuals who engage in the business of legal funding without a license.
-- the interest rate on loans would be capped. Illinois would have been the first state to enact such a cap.
According to the article, it is unlikely the proposal will be presented again.
The proposed legislation in Illinois was defeated today, though. The Chicago Daily Bulletin is reporting that Senate Bill 3322 failed to get the support it needed to make it out of this year's veto session. Rep. Louis I. Lang is quoted as saying that the funding entities now "will be able to charge 1,000 percent interest. They can do anything they want. No consumer protections at all."
The civil litigation funding industry has been providing its services in Illinois for more than a decade without regulation. Here are the highlights of the failed proposed legislation
-- legal funding companies would be required to be licensed by, and to give annual reports to, the Illinois Department of Financial and Professional Regulation
-- lenders would be required to provide plaintiffs with a detailed contract and a five-day window to cancel their contract
-- there would be criminal and civil penalties for individuals who engage in the business of legal funding without a license.
-- the interest rate on loans would be capped. Illinois would have been the first state to enact such a cap.
According to the article, it is unlikely the proposal will be presented again.
Thursday, January 13, 2011
ABA Supports Right to Counsel for Civil Contempt Defendants
Back in November I reported that the Supreme Court had granted cert on a case called Turner v. Price which asks whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that can result in his incarceration.
Today, the ABA Journal.com is reporting that the ABA has filed an amicus brief in the case in which it argues that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. Go here for the full story. Go to SCOTUS blog for links to the brief and all other documents related to the case, including the lower court's opinion.
Today, the ABA Journal.com is reporting that the ABA has filed an amicus brief in the case in which it argues that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. Go here for the full story. Go to SCOTUS blog for links to the brief and all other documents related to the case, including the lower court's opinion.
"E-discovery" has resulted in unprecedented number of sanctions
The Wall Street Journal law blog is reporting today that according to a new study done by King & Spalding and reported in the Duke Law Journal, lawyers are getting sanctioned for electronic-discovery violations at an unprecedented rate. Click here for the study; here for the ABA Journal article report; here for a report from the Catalyst E-Discovery Blog.
Top Ten stories of 2010
The Legal Ethics Forum has posted its "top ten stories of 2010" list here, with links to the lists from past years also. Here are the headlines, but go to their post for the details and links to more information.
1. Congress, the Supreme Court, the First Amendment, and Lawyering.
2. Padilla v. Kentucky.
3. Resolution of the Torture Memos Discpline.
4. The Internet and Lawyering.
5. Advertising and Free Speech.
6. The Clinics Strike Back.
7. New Rules for the Golden State?
8. The Continuing Battle Over Funding of Public Defenders.
9. Litigation Funding.
10. The BP Oil Spill.
1. Congress, the Supreme Court, the First Amendment, and Lawyering.
2. Padilla v. Kentucky.
3. Resolution of the Torture Memos Discpline.
4. The Internet and Lawyering.
5. Advertising and Free Speech.
6. The Clinics Strike Back.
7. New Rules for the Golden State?
8. The Continuing Battle Over Funding of Public Defenders.
9. Litigation Funding.
10. The BP Oil Spill.
Friday, January 7, 2011
Information given to someone thought to be an attorney not in good standing is still privileged
Back in June of last year, I wrote about a case in which a federal court magistrate in New York has decided that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege. See here and here.
I criticized the decision arguing that if the client really did not know of the attorney's inactive status, the client should be given the benefit of the privilege.
Yesterday, the Legal Ethics Forum reported that the decision has been overturned. See here.
The text of the opinion is available here.
I criticized the decision arguing that if the client really did not know of the attorney's inactive status, the client should be given the benefit of the privilege.
Yesterday, the Legal Ethics Forum reported that the decision has been overturned. See here.
The text of the opinion is available here.
The Supreme Court grants two cases on ineffective assistance of counsel
The Supreme Court announced today it has granted review in two cases, which involve issues related to the notion of ineffective assistance of counsel. Interestingly, though, the cases will be heard separately. The Court will be deciding whether an individual who rejects a plea offer from prosecutors because of his or her lawyer's advice has a claim for ineffective legal assistance if that advice was either flawed or produced a less favorable outcome than if the individual had gone to trial. Moreover, the Court told counsel in both cases to brief and argue an additional question: “What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?” The cases are called Leflar v. Cooper (10-209) and Missouri v. Frye (10-444). (The links over the names of the cases will take you to the SCOTUSblog page with all the case documents, briefs and opinions.)
New lawyer TV show: Harry's Law
Back in June of last year I posted a preview of three new law related TV shows that were announced for the fall season. One of them (Outlaw) was cancelled after three or four episodes. Thankfully, I may add! It was absolutely terrible. Another one (The Defenders) became my favorite. I have blogged comments on several episodes.
The third one (Harry's Law) did not make it into the fall TV season at all. I was wondering if, having seen the failure of Outlaw, the network had decided to can it even before it got started. But, no, it was only postponed.
I just heard Harry's Law will premiere on January 17. Here is the program's official website. Here is a link to some video previews of the show.
The third one (Harry's Law) did not make it into the fall TV season at all. I was wondering if, having seen the failure of Outlaw, the network had decided to can it even before it got started. But, no, it was only postponed.
I just heard Harry's Law will premiere on January 17. Here is the program's official website. Here is a link to some video previews of the show.
Wednesday, January 5, 2011
Podcast on e-discovery
Here is a link to a podcast in which the panelists discuss ethical issues in e-discovery including what they believe to be the most common ethical violations in e-discovery and ways to ensure that attorneys comply with their ethical duties with respect to e-discovery. You can also access the program here and here:
Story regarding insurance companies
In class we spend a good deal of time talking about the so-called "insurance triangle," which refers to the issues that arise when a lawyer is paid by an insurance company to represent the insured. Although not really on this topic precisely, here is a link to an interesting story in the product liability defendants oriented blog Drug and Device law blog on how an insurance company's tactics can threaten to turn discovery into a road map for the underlying tort claimants. It concludes that "it is unfortunate – and even more unfortunate that it is hardly unexpected – that some insurance companies engage in tactics that can prejudice their insureds to avoid covering claims."
Wednesday, December 29, 2010
Minnesota amends rules to allow flat fees
In the past, I have expressed my disagreement with the approach some jurisdictions take on the issue of flat fees (see here and here). Last October, however, I reported that Tennessee rejected the trend when it amended its rules (here).
Now comes news that the Minnesota Supreme Court also got it right, and has amended its Rules of Professional Conduct to allow, with certain notice requirements, an attorney to treat a flat fee as an attorney's property on receipt.
Thanks to the Legal Profession blog for the update.
Now comes news that the Minnesota Supreme Court also got it right, and has amended its Rules of Professional Conduct to allow, with certain notice requirements, an attorney to treat a flat fee as an attorney's property on receipt.
Thanks to the Legal Profession blog for the update.
USA Today series on prosecutorial misconduct continues
Back in September, USA Today began to publish a series of articles on prosecutorial misconduct (see here). The series is available here. The most recent article is reviewed by the Wall Street Journal here. The more recent article argues that prosecutorial misconduct lets convicted off easy. According to the review, USA Today identified 200 cases since 1997 in which prosecutors supposedly violated laws or ethics rules; in at least 48 of the cases, defendants were convicted of crimes, but courts gave them shorter sentences than they would have otherwise received due to prosecutorial misconduct.
Top Legal Ethics Stories of 2010
The Legal Ethics Forum forum has a list of top legal ethics stories for 2010 and is still asking for more suggestions. Go here for the story.
Monday, December 20, 2010
How not to practice law: show up drunk
Here is an easy multiple choice question: when representing a client, a lawyer should show up (a) sober or (b) drunk. If you picked 'a' .... Ding, ding, ding! We've got a winner. Generally speaking, that is the way to practice law, wouldn't you say?.... But since this is an entry in our on-going how NOT to practice law series, you know what's coming....
An Indiana attorney has been suspended for six months without automatic reinstatement as a result of an incident in which the attorney appeared at the Child Advocacy Center for a police interview with a juvenile client while intoxicated. Go here for the opinion. Go here for more on the story.
Unfortunately, this is not the first time we have seen this type of conduct. Here is a must see video of an attempt by a judge to determine if a lawyer is drunk when he appeared in court to represent a criminal defendant client: part 1 (5 minutes), part 2 (9 minutes), part 3 (9 minutes), part 4 (10 minutes)
An Indiana attorney has been suspended for six months without automatic reinstatement as a result of an incident in which the attorney appeared at the Child Advocacy Center for a police interview with a juvenile client while intoxicated. Go here for the opinion. Go here for more on the story.
Unfortunately, this is not the first time we have seen this type of conduct. Here is a must see video of an attempt by a judge to determine if a lawyer is drunk when he appeared in court to represent a criminal defendant client: part 1 (5 minutes), part 2 (9 minutes), part 3 (9 minutes), part 4 (10 minutes)
How not to practice law: have sex with clients... while visiting them in prison!
The Legal Profession Blog is reporting that the California Supreme Court recently disbarred a lawyer who had sexual relations with two incarcerated clients. Story here.
UPDATE 3/7/2014: Here is another case involving the same type of conduct. In this case, the lawyer was caught when he brought an inmate a sex toy and asked her to perform sex acts with it, supposedly in exchange for his legal fees.
UPDATE 3/7/2014: Here is another case involving the same type of conduct. In this case, the lawyer was caught when he brought an inmate a sex toy and asked her to perform sex acts with it, supposedly in exchange for his legal fees.
Duty to the beneficiary of a will?
The Legal Ethics Forum recently reported on a case out of the California Court of Appeal called Hall v. Kalfayan, in which the court decided that "a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator."
According to the court, "[t]he essence of the claim in the case. . . is that [the attorney] failed to complete the new estate plan for Ms. Turner [the client] and have it executed on her behalf by her conservator before her death, thereby depriving Hall [the plaintiff] of his share of her estate."
The court based its ruling on the fact that "in the absence of an executed (and in this instance, approved) testamentary document naming Hall as a beneficiary, Hall is only a potential beneficiary."
But isn't this a bit of an egg/chicken problem? The plaintiff can't have a cause of action because he is not a beneficiary, but the reason he is not a beneficiary is, arguably, the attorney's negligence. If the lawyer had not been negligent, he would have been a beneficiary...
The court seems to realize this problem and makes a point of stating that the client "had not expressed a desire to have a new will prepared and had only limited conversation with [the lawyer] about the disposition of her estate."
If that is the case, I can understand the court's reasoning. After all, lots of people can speculate that they would have been beneficiaries had the client drafted a will if the client hadn't made up her mind yet. I have no problem with the court's conclusion in a case like that.
But I think it would be wrong to conclude that even if the client had expressed her desire to the lawyer, there is no duty to the beneficiary until the lawyer does the work.
Let's assume that the client clearly expresses to the lawyer his desire to prepare a will in which a certain person would be a beneficiary and it is clear that without the will the person would recover less or nothing at all. Let's also assume that it is clear the will must be prepared quickly because the client is in poor health. Then the lawyer is negligent in doing the work, or waiting too long or whatever. Saying that the beneficiary does not have a cause of action because the will was never prepared allows the negligent lawyer to avoid any consequences for the negligence and results in an injury to the beneficiary. I don't see why not recognize a cause of action under those circumstances. It would serve the two main goals of tort law: providing incentives for avoiding negligent conduct and providing compensation to victims of negligent conduct.
According to the court, "[t]he essence of the claim in the case. . . is that [the attorney] failed to complete the new estate plan for Ms. Turner [the client] and have it executed on her behalf by her conservator before her death, thereby depriving Hall [the plaintiff] of his share of her estate."
The court based its ruling on the fact that "in the absence of an executed (and in this instance, approved) testamentary document naming Hall as a beneficiary, Hall is only a potential beneficiary."
But isn't this a bit of an egg/chicken problem? The plaintiff can't have a cause of action because he is not a beneficiary, but the reason he is not a beneficiary is, arguably, the attorney's negligence. If the lawyer had not been negligent, he would have been a beneficiary...
The court seems to realize this problem and makes a point of stating that the client "had not expressed a desire to have a new will prepared and had only limited conversation with [the lawyer] about the disposition of her estate."
If that is the case, I can understand the court's reasoning. After all, lots of people can speculate that they would have been beneficiaries had the client drafted a will if the client hadn't made up her mind yet. I have no problem with the court's conclusion in a case like that.
But I think it would be wrong to conclude that even if the client had expressed her desire to the lawyer, there is no duty to the beneficiary until the lawyer does the work.
Let's assume that the client clearly expresses to the lawyer his desire to prepare a will in which a certain person would be a beneficiary and it is clear that without the will the person would recover less or nothing at all. Let's also assume that it is clear the will must be prepared quickly because the client is in poor health. Then the lawyer is negligent in doing the work, or waiting too long or whatever. Saying that the beneficiary does not have a cause of action because the will was never prepared allows the negligent lawyer to avoid any consequences for the negligence and results in an injury to the beneficiary. I don't see why not recognize a cause of action under those circumstances. It would serve the two main goals of tort law: providing incentives for avoiding negligent conduct and providing compensation to victims of negligent conduct.
USA Today series on prosecutorial misconduct continues
Back in September, USA Today began to publish a series of articles on prosecutorial misconduct (see here). The series now includes 14 different stories - all available here. The most recent articles are reviewed by the Wall Street Journal here. The more recent stories are all about the fact that federal prosecutors rarely get in trouble for making mistakes, even significant ones.
Tuesday, December 14, 2010
US Supreme Court denies review of decision that struck down NY advertising rules
Yesterday, the United States Supreme Court announced it will not review a Second Circuit decision that struck most of New York’s attorney disciplinary rules regarding advertising (adopted back in 2007). For the latest and helpful links to more information go here.
Wednesday, December 8, 2010
Story on the California report on prosecutorial misconduct
Back in October, I reported on a recent study concluded that California courts discipline fewer than 1% of prosecutors they find committed misconduct. (See here.) About two weeks after that, the California state bar, led by recently-appointed Chief Trial Counsel Jim Towery, announed it was going to investigate 130 prosecutors who were identified in that study. (See here.) The story is now addressed in a short article in the current issue of the ABA Journal, available here.
Judges using Facebook in Ohio
Following on yesterday's post on Facebook, the Board of Commissioners on Grievances & Discipline of Ohio has issued an advisory opinion examining the ethical implications of judges using social media sites like Facebook and Twitter. The opinion advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety. Go here and here for more on the story. The Opinion itself is available here as a word document.
Judge sanctioned for attempting to force lawyer to recite pledge of allegiance
Back in October, I reported that a judge in Mississippi held a lawyer in contempt when the lawyer refused to recite the pledge of allegiance in court. See here. The judge apprentely had the practice of requiring everyone to stand and recite the pledge when the judge entered the courtroom. The Mississippi Commission on Judicial Performance was not impressed by the judge's conduct and it has now recommended a reprimand for the judge. Go here for the full story.
Tuesday, December 7, 2010
Access to Facebook pages
Facebook appears to be in the news almost daily these days and, for a number of different reasons, it is now clear that all lawyers need to educate themselves (and their clients) on how to use it and not to use it. That includes me, but I do know one thing: very little (if anything) is private on the internet.
For more on the issues related to professional conduct and social media go to this section of this blog, particularly to this post with examples of some of the uses of social media that have created problems for lawyers and judges recently.
Now here is the latest, via the Legal Profession Blog:
Last year, the Philadelphia Bar Association issued an opinion (available here) concluding that seeking to surrepticiously “friend” an opposing party or witness on social media (such as Facebook), personally or through an agent would constitute unethical conduct.
However, a Pennsylvania Court of Common Pleas recently held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law.
A New York trial court decision reached the same result by a very similar analysis.
For more on the issues related to professional conduct and social media go to this section of this blog, particularly to this post with examples of some of the uses of social media that have created problems for lawyers and judges recently.
Now here is the latest, via the Legal Profession Blog:
Last year, the Philadelphia Bar Association issued an opinion (available here) concluding that seeking to surrepticiously “friend” an opposing party or witness on social media (such as Facebook), personally or through an agent would constitute unethical conduct.
However, a Pennsylvania Court of Common Pleas recently held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law.
A New York trial court decision reached the same result by a very similar analysis.
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