Conflict of interest costs law firm $250,000

Last month, the Illinois Appellate Court released an interesting case (from earlier this year) that addresses the consequences of agreeing to represent a client knowing that doing so would constitute a conflict of interest.  As the title of this post suggests, that consequence was that the firm was not allowed to recover a $250,000 fee.  Although there are some inconsistencies within the court’s reasoning, I think it reaches a correct result.  The case is called In re Marriage of Newton and it is available here.

The story behind the case started when a husband consulted a lawyer about hiring the lawyer to represent him in his divorce.  Having decided not to represent the husband, the attorney decided to represent his wife instead, who consulted the lawyer some time later.  After the husband filed a motion to disqualify the wife’s attorney (and his firm), the court held some hearings, the results of which were appealed which led to more hearings and eventually, after about two years of litigation on the question, the lower court not only disqualified the firm but also ordered that it did not have a right to recover any fees.  When the firm protested in court, the judge held the lawyers in contempt.

On appeal from the contempt order, the court believed that to discuss the validity of the contempt order it was also necessary to discuss the validity of the disqualification order and the order barring the recovery of fees.

Before we go any further, it should be noted that the fee issue was based on a specific statute that allows a wife to make her husband pay for her lawyer.  This is an important fact because the firm in question was requesting that the party it supposedly betrayed pay for its fees.  The court did not like that idea.

The court began its analysis by pointing out correctly that, an attorney-client relationship can be created based on the client’s belief that it has been created and does not require a formal handshake, or signing of a contract.  For this reason, given the evidence adopted as true by the lower court, the court concluded that a professional relationship was established with the husband during the initial interview.

This is okay, but it omits the fact that the attorney clearly declined to accept the representation at the end of the interview.  The case is better viewed as an example of the case of a prospective client under Rule 1.18, but since that rule did not exist at the time of the facts of the case, the court analyzes the issue under Rule 1.9 which is about the duty owed to former clients.

If the husband is a former client, then Rule 1.9 prohibits the lawyer (and 1.10 extends that to all other lawyers in his law firm) from taking on the representation of the wife in the divorce.  Knowing this, the firm nevertheless agreed to represent her.  (Note that during the evidentiary hearings the wife testified that the lawyer admitted to her he knew taking her case would create a conflict; but the lawyer denied saying this.  The lawyer also denied having taken any notes during his meeting with the husband, but the husband asserted he did.  The court did not give much credibility to the lawyer.

Thus, assuming as true that the attorney agreed to represent a client with full knowledge that doing so would create a conflict of interest, the court found that the agreement for services was null and void from its inception and thus did not give the lawyers the right to enforce it.  Citing the principle that an attorney may not receive fees from the party he has wronged, the court held the lawyers were not entitled to the fees they claimed to have earned during the two years they represented the wife.

The firm argued that it should have been compensated for the work done for the client up to the time it was disqualified.  The court disagreed, however, finding that the firm had not been litigating in good faith whether its representation of the wife constituted a conflict, because it had already admitted to her that it was.  One thing is to say that the firm did not think there was a conflict and was willing to fight for two years to argue the point, and quite another to say that the firm knew there was a conflict but wanted to fight for two years to be allowed to keep the case anyway.  The court saw the case more like the latter than the former.

For me the key to this case, which the court does not emphasize enough, is the fact that the lawyer/firm actually knew going in he/it was engaging in a conflict of interest.  I have no problem finding that under those circumstances the firm should pay the price.

I do worry, however, that read more generally, the case can penalize a firm that is caught in conflict (not of its own fault).  Take a case where two firms merge in the middle of the litigation creating a conflict in a case, or a case, like the famous Cunningham case used in many casebooks, where an offer to settle the case creates a conflict for the opposing firm.  In such a case, I think it would be fair to allow the conflicted firm to withdraw and allow it to recover fees for the work already performed for the client before it realized it had a conflict including for the period of time during which the firm acted with a conflict but had not realized it yet.

In the end these two possible approaches open the question whether the notion of conflicts of interest should be seen as a sort of “strict liability” case where the fault of the firm does not matter.  According to this approach, if there the firm acted with a conflict, the firm acted wrongly and should not recover its fees. According to the other view, if the firm acted with a conflict, it should be allowed to recover the fees for the services rendered until it is officially disqualified as long as the firm acted without knowledge or fault.

Of course, the question gets more complicated if it can be argued that the firm acted with the conflict because of its own negligence.  I would say that such a case should be resolved just as if the firm acted intentionally (as in the case I am discussing here), because firms have a duty to use reasonable care to avoid conflicts.

One last point: I mentioned at the top that there are some inconsistencies in the analysis of the court and here it is.  Having decided that the attorney created a professional relationship with the husband during an initial interview - even though the interview resulted in the lawyer rejecting the case - the court goes on to cite some older cases that hold that for there to be an attorney-client relationship there has to be a contract and a clear meeting of the minds.  The expressions cited from these cases, clearly contradict the principle upon which the court based its decision.

The result of the case, however, it correct, it seems to me because the key is not whether a relationship was formed during that interview, but the fact that the attorney stated he knew taking on the new case would be a conflict and acted in a way that showed he did not care.

Fortunately, looking forward any future cases with similar facts would be decided using the new rule on prospective clients (Rule 1.18) which should make the analysis a bit more straightforward.

Illinois Appellate Court reverses conviction because of ineffective assistance of counsel based on conflict of interest

Last September, in a short, but well written opinion, the Illinois Appellate Court addressed the issue of whether a conviction should be reversed due to a conflict of interest.  This was the second case in which the court reversed a conviction for ineffective assistance of counsel that month.  The case is called Illinois v Dopson  and it is available here.  My comment on the other case decided that month is here.

In Illinois v Dopson, the attorney for the accused was representing two criminal defendants concurrently in separate cases.  The attorney did not know that one of these defendants was a confidential informant who provided all the information used to arrest the other client.  When the state disclosed to the attorney that one of his clients would be used as a witness against the other client, the attorney ceased to represent the client who was going to be a witness for the state.  He continued to represent the other client, though, and that client was convicted.

On appeal, the client claimed his attorney has provided ineffective assistance of counsel because he continued to represent him while he had a "per se" conflict of interest.  The court agreed.

The court started by pointing out that even though Strickland v Washington usually requires the defendant to show serious attorney error and prejudice, a showing of a per se conflict, by definition, satisfies both prongs of the test.  Operating under a per se conflict is such a serious error there is no need to show prejudice.  Reversal is automatic.

Since Illinois has decided already that prior or contemporary representation of a State's witness constitutes a per se conflict, the Court had no problem finding the case required reversal.

The State claimed there was no conflict of interest because the attorney was not contemporaneously representing the two clients at the time of the defendant’s trial. However, all that means is that the conflict went from being a concurrent conflict to a successive one. Either way, as the court correctly states, “the State’s attempt to narrow the scope of the per se conflict-of-interest rule belies its underlying purpose” which is to make sure an attorney does not find himself in a position where the attorney can’t represent the interests of one client because of his duties to another. As the court states, this “presupposes that defense counsel’s vigorous cross-examination of the State’s witness should be unhindered” by the need to protect a former client’s confidences. At the time of the trial, the attorney was prevented from attempting to elicit information obtained during that prior representation. Whether such information existed, or would have been useful to the defense, is irrelevant.

Finally, although it had stated it was not necessary to establish prejudice, the court points out that the attorney’s cross examination of his former client “was mild, at best.” The attorney did not attack her credibility or point out her possible bias.

Thus, any way you look at it, the court found the circumstances showed a clear conflict of interest which required reversal of the conviction.

Illinois Appellate Court reverses conviction (based on a negotiated plea) because of ineffective assistance of counsel

Convicted defendants often argue ineffective assistance of counsel on appeal, but the argument is not successful most of the time.  Last September, however, the Illinois Appellate Court decide two cases in favor of defendants claiming ineffective assistance of counsel.  I will comment briefly on both of them in separate posts.  Here is the first one.

In this first case, the court set aside a negotiated plea, after finding that the defendant's attorney had rendered ineffective assistance.  In that case, the defendant argued he had agreed to the plea offer based on trial counsel's representation that there were no witnesses available to testify on defendant's behalf, when, in fact, there was one such witness.

The court explains that although to present a witness in a case is a discretionary decision for which usually does not support a claim of ineffective assistance of counsel, in this case the attorney's conduct was not deciding not to use a witness but failing to investigate if there were any witnesses.  The court added that whether defense counsel was ineffective for failure to investigate is generally determined by the value of the evidence that had been available but the attorney failed to find.

Using that standard, the court found that the defendant was able to make a case of ineffective assistance of counsel under the Strickland v. Washington standard (attorney error and prejudice).

The case is called People v Clark and it is available here.

Greetings from Switzerland

I am coming to you "live" today from Lucerne, Switzerland!  I came here to teach a class on International Torts at the University of Lucerne's Law School, with which my law school has an exchange program.  If you are interested in what I will be covering in that course, go here.  The book I put together for the course is about 150 pages long right now, but it will be shorter next summer when the Supreme Court decides some of the cases I have in the book.  For more about that go here, here and here.

Oral argument audio in Smith v Cain is now available

The oral argument in Smith v Cain is available here.

Happy Birthday to the Blog!

Today is this blog's third anniversary!  I started it on November 11, 2008, just a few days after I had started my Torts blog.  Since then I have posted more than 800 posts!  I thank you for your support and hope you will continue to follow the blog in the years to come.

Oral argument recap in Smith v. Cain: it did not go well for the prosecution!

A few days ago I posted a note about a new case before the Supreme Court on prosecutorial misconduct in New Orleans called Smith v. Cain. The oral argument before the Supreme Court was today and apparently it did not go well for the office of the prosecutor.  As reported by Lyle Denniston of the SCOTUS blog, the justices pretty much actually suggested to the attorney representing the DA's office that she should just give up.  Here is an excerpt of Denniston's argument recap:

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain . . .

. . . .   The aggressive exchanges [between her and the justices] were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?” Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument . . . 

It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?”   . . .

At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.

But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand.  . . .

I guess this should not be surprising, given the nature of the allegations and the arguments involved, but it is upsetting that it comes a year too late for John Thompson, who spent years in prison because of prosecutorial misconduct in the same office.  The Supreme Court reversed a verdict in his favor last year.  (Go here and scroll down for a lot of information on that case.)

You can read the full article on the oral argument here.

You can read the transcript of the oral argument here.

UPDATE 11/12/11: The audio of the oral argument in Smith v Cain is now available.  To listen to is now click here here.

UPDATE 1/12/12:  The Supreme Court announced the decision in Smith v Cain today.  Go here for more information.

Supreme Court to hear another case on prosecutorial misconduct from New Orleans

As you probably remember, last year the Supreme Court decided Connick v. Thompson, which has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years," absolving the New Orleans office under DA Harry Connick, Sr. of complaints that it had failed to train prosecutors about their duty to disclose exculpatory evidence.  (If you type "Thompson" or "Connick" on the "search this blog box" on the right side panel (under my name), you will find a number of entries with a lot of information about that case.)

At 11 a.m. this coming Tuesday, the Supreme Court will consider new claims of misconduct by prosecutors in the New Orleans district attorney’s office when it hears oral arguments in a case called Smith v. Cain.

The case involves the same complaint:  that the prosecution team for Orleans Parish follows a continuing policy of refusing to hand over exculpatory evidence to defense lawyers.

Go here for more on the background of the case.

Go here for access to all the relevant documents about the case, including the lower court opinion and the briefs of the parties.

Audio of Supreme Court oral arguments is now available

A few days ago, I wrote about two cases before the Supreme Court on ineffective assistance of counsel.  See here.   Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  You can now listen to the oral arguments here and here.

Article on ethical issues related to the representation of older clients and clients with diminished capacity

The most recent issue of the Illinois Bar Journal has an article on the ethical issues related to the representation of older clients and clients with diminished capacity.  You can read the full article here.

Article on prosecutorial misconduct

The Yale Law Journal online has published an essay on prosecutorial misconduct called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct. You can read it here or here.

Thanks to the Legal Ethics Forum for the link.

Is blogging a form of advertising?

For a number of years, criminal defense attorney Horace Hunter has used a blog as part of his firm's website to write short articles about what he considers to be important issues related to his cases.  Recently, the Ethics Counsel of the state of Virginia contacted him to tell him his blog was considered a form of advertisement and was not in compliance with the state rules.  Eventually, the bar has brought a misconduct charge against Hunter, who argues the blog is news and commentary, and that the bar’s attempt to discipline him, or to force him to add a disclaimer stating the blog is an ad, is a violation of his First Amendment rights.  You can take a look at the blog itself here.

This is a very interesting question and, given the rising number of firms that host blogs, it can have significant implications.

The case has generated a good deal of attention.

Here is an article in the Washington Post discussing the issue.

You can listen to podcasts discussing the case here and here.  The second one of these is an interview with attorney Hunter himself.

Here some very insightful comments from other bloggers:  here and here.

To paraphrase some of these comments, the problem with the case is that the issue should be about the content of the publication not about the type of publication.  The question should not be whether a blog is a form of advertising, but whether what is said in the blog is advertising.  As Carolyn Elefant of MyShingle.com states:

. . . .if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  

I tend to agree with this statement, and it is easy to apply the analysis if the blog only publishes the same type of articles all the time.  But a blog is not just one article.  Each entry is an article in and of itself.  What if some are like ads and some are like law review articles?

Maybe a good compromise would be to require a general disclaimer in the firm's website (which is probably required already anyway), but not in each individual blog entry. 

Discussion on the lawyering cases before the Supreme Court

Yesterday, the Supreme Court Blog hosted a discussion of the two cases on ineffective assistance of counsel the Court heard a few days ago.  You can read all the comments here.

Supreme Court hears cases on ineffective assistance of counsel; transcripts are available

Yesterday, the US Supreme Court heard oral arguments in two cases on the law of lawyering: Lafler v. Cooper and Missouri v. Frye.  Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  Here is a link to an article providing all the background on the cases.

In Lafler, the attorney mistakenly told the defendant that the state could not establish a necessary element of its case.  Based on that advice, the defendant rejected a guilty plea, was convicted at trial, and was eventually sentenced to a much longer prison term.

In Frye, the defendant’s counsel simply failed to inform him that a plea bargain had been offered at all, allegedly leading him to enter a guilty plea on terms far less favorable than he would have received had he agreed to the state’s offer.

The full transcript of the oral argument in Lafler can be found here.  All relevant documents in the case can be found here.

The full transcript of the oral argument in Frye can be found here. All relevant documents in the case can be found here.

The Associated Press reports (here) that the Court “seemed reluctant” to offer a second chance for plea bargaining after sentencing had taken place, while Nina Totenberg of NPR reports (here) that the Justices “seemed a bit more conflicted” in Frye than in Lafler. Adam Liptak also has coverage of the arguments for the New York Times (here).  Thanks to Nabiha Syed of the SCOTUS blog for these links.

Pro bono conversation questions of the week

The national pro bono celebration conversation ends this week with the following questions:

What should the relationship be between professional development and pro bono services?

Go here to join the conversation.

Firm denied fees for misconduct in bankruptcy case

Freivogel on Conflicts has a new case of interest to bankruptcy lawyers.  In this case, a firm was not allowed to recover fees because of what the judge called the law firm's almost wanton disregard for the disclosure requirements of the Bankruptcy Code and Rules.  The judge found the firm had ample opportunity to cure the problems when facts were discovered or deficiencies were pointed out by the U.S. Trustee.  Because it didn't, the judge concluded that "severe sanctions are warranted" and added that, in light of the firm's "steadfast assertion that it did nothing wrong, I would have serious concerns about the veracity of its disclosure statements in future cases if the firm thought it could get away with a minor slap on the wrist."

The case is called In re Gluth Bros. Const., Inc., Slip Copy, 2011 WL 5023417, Bkrtcy.N.D.Ill.,2011.

ABA Commission has released new paper on alternative litigation finance

At its meeting in Denver, October 14-15, 2011, the ABA Commission on Ethics 20/20 decided to file its Draft White Paper on Alternative Litigation Finance as an Informational Report to the ABA House of Delegates. The Commission seeks to share this Draft White Paper with interested individuals and entities for their consideration prior to the filing deadline of December 2, 2011.  Go here to read the paper.

The Paper's executive summary states as follows:

     The general conclusion of this White Paper is that attorneys must approach transactions involving alternative litigation finance with care, mindful of several core professional obligations. An attorney must always exercise independent professional judgment on behalf of a client, and not be influenced by financial or other considerations. See MODEL RULES OF PROF’L CONDUCT R. 2.1 (2009) . . . Moreover, an attorney must not permit a third party to interfere with the exercise of independent professional judgment. Numerous specific provisions in the Model Rules, including conflicts of interest rules and rules governing third-party payments of fees, reinforce the importance of independent professional judgment. See MODEL RULE 1.7(a)(2) (representation materially limited by lawyer’s responsibilities to a third party or the lawyer’s own interests); MODEL RULE 1.8(e) (with limited exceptions, lawyers may not provide financial assistance to client); MODEL RULE 1.8(f) (lawyer must not accept compensation for representation from third party without informed consent of client and unless it will not interfere with independent professional judgment); MODEL RULE 1.8(i) (lawyers may not acquire proprietary interest in subject matter of representation); MODEL RULE 5.4(c) (lawyer may not permit fee payor to direct or regulate lawyer’s professional judgment).

     In addition, attorneys must be vigilant to prevent disclosure of information protected by Model Rule 1.6(a), and to use reasonable care to safeguard against waiver of the attorney-client privilege. Any infringement on rights that clients would otherwise have, resulting from the presence of alternative litigation finance, requires the informed consent of the client after full, candid disclosure of all of the associated risks and benefits.

     Finally, lawyers must fully explain the terms of funding transactions and ensure that clients are aware of the risks these transactions present. If they are not experienced in dealing with these funding transactions, lawyers who advise clients in connection with alternative litigation finance must become fully informed about the risks and benefits of these transactions, in order to provide competent advice to clients. Because this is a new and highly specialized area of finance, it may be necessary for a lawyer to undertake additional study or associate with experienced counsel when advising clients who are entering into these transactions.

For more information about the work of the Commission go here.

How not to practice law: Continue to practice after you are suspended; get disbarred

Here is a simple principle we have seen before.  If you are suspended from practice, it means you CAN'T practice!!  The Legal Profession blog is reporting that an attorney who had continued to practice after being suspended for six months was disbarred by the New York Appellate Division for the First Judicial Department.  Go here for more details.

Client's attempt to be a smartass during deposition results in judgment against him

The Nevada Supreme Court has upheld a casino’s summary judgment for $2 million against Joe Francis, creator of the soft porn “Girls Gone Wild” franchise for what District Judge Michelle Leavitt called “the most ridiculous exercise of the Fifth Amendment I think I’ve ever seen” during a deposition.  Go here for the details.

This is not the first time Francis acted like this during a deposition.  Here is an excerpt of one of them:
Q. Have you ever been convicted of a felony?
A. I don’t understand what that means.
…
Q. You don’t understand what being a convicted felon is?
A. No. Can you explain it to me?
Q. Did you serve any time in jail?
A. What do you mean “serve”?
…
Q. Do you know what a prisoner is?
A. No.
Q. Do you know what a cellmate is in jail?
A. No.
Q. Do you know what a jail is?
A. Sort of

These deposition antics nearly caused a default judgment against him.

In the most recent case, after the deposition the casino/plaintiff filed a motion for a summary judgment to which Francis replied that he wanted to withdraw his Fifth Amendment answers and continue the deposition. However, the judge refused to reopen discovery and granted summary judgment in favor of the casino. Francis appealed but the Nevada Supreme Court agreed with the District Court’s decision, noting that although answering some of questions at his deposition could have been incriminating, "his refusal to answer nearly every question was unjustifiable.” Francis now has to comply with the judgment which ordered to pay $2 million.  With interest and court costs, could reach $3 million.


Thanks to the Legal Ethics Forum for the link.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How do we ensure high quality pro bono work?  Could well-trained legal assistants and paralegals assume greater responsibility and provide specific forms of legal relief? What matters would be appropriate to specialized form of representation?

Go here to join the conversation.

Prospective waivers

A few days ago, I discussed the use of prospective waivers with my students.  Now, here is a link to an article criticizing their use.  Here is an excerpt that summarizes its position:

What started as a trickle has now become a flood, as major law firms have embraced the practice of inserting into every retainer letter, often buried on page 5 in paragraph 16, a wholesale prospective waiver that would permit the law firm to take on any representation against the new client so long as the matters are not substantially related. No limitation as to matters that are not waivable under Rule 1.7(b)(1). No limitation as to time. No limitation as to matters not litigated. No limitation as to the subject matter of the adverse representation. No limitation as to the identity of the adverse party or parties who would be represented adverse to the client that is granting the prospective waiver. Can such a waiver come close to being given with informed consent? Of course not.

You can read the full article here.  The article is by Larry Fox, a former member of the ABA Standing Committee on Professional Responsibility.  For some comments on the article go to the Legal Ethics Forum, here.

Thanks to the LEF for the link to the article.

Illinois Lawyer Now invites you to celebrate Pro Bono week

Here is a link to a short article on Illinois Lawyer Now inviting you to join the celebration of National Pro Bono Week by Hon. Barbara Crowder.  It starts:  "Do you pro bono? If so, show you are “Pro Bono Proud” during National Pro Bono Week by attending a celebratory event. If not, why not? More opportunities abound to find a pro bono project that meets your time and abilities than ever before. And even more ways to pro bono may be coming to a circuit near you."  Go here to read the full article, and do join the National Pro Bono week activitites.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How can we better use technology? What kinds of information could/should we disseminate, and how?  How do we serve the hard to reach geographical communities?

Go here to join the conversation.

Internship opportunity for students

The Ethics and Professionalism Committee of the ABA Section on Litigation is seeking an unpaid student intern to assist its web editors. The intern will write weekly short articles (300-500 words) discussing recent ethics opinions, rule changes, or anything else relevant to ethics and professionalism as it relates to the practice of law. The intern's articles will be edited and then published online under the intern's name, which will allow him or her to accumulate an online writing portfolio accessible by search engines.

Law students interested in legal ethics are strongly encouraged to apply. To apply, please e-mail Josh Camson (josh@joshcamson.com) web editor for the Ethics and Professionalism Committee with resume, a cover letter, and a brief writing sample (no more than two pages).

Former Texas prosecutor, now a judge, accused of withholding exculpatory evidence.

A former Texas prosecutor, now a sitting judge, has been accused of withholding exculpatory evidence in the prosecution of an Austin-area man who spent 25 years in prison for a murder he didn't commit.  Go here for the details.

Access to clients to film documentary while case is ongoing

Friend of the blog Alan Crede, of the Boston Personal Injury Lawyer Blog, has posted a very interesting comment on the very nature of our civil justice system, particularly on the fact that the system depends on the evaluation of evidence that is available to the jury while there may be other evidence that the jury never gets to see.  You can read his comment here.

As every lawyer and law student knows, our judicial system is not based on the search for the objective truth of the facts at issue but on the concern over protecting the due process of the process itself.  That is the nature of the adversary system.  The rules of evidence allow for the exclusion of evidence that might be relevant because the policies upon which those rules are based are more important to us than the possible benefit we'd get from the admissibility of that evidence.  This is obviously true in criminal cases, but it is not less true in civil cases.

In his comment, Alan wonders about a number of things including the fact that sometimes the most important evidence appears to be the evidence that is not available to the jury.  Most of the time, we don't realize this because in most cases that evidence is, simply, never disclosed.  But sometimes the general public gets to see evidence (through the media, for example) that the jury does not get to see.  And in many of those cases, the impression the public gets is different from that reflected by the jury's decision.

Some see this as a bad thing; others as a good thing.  It depends on what you think of the jury system and the policy behind the rules of evidence to begin with.  In fact, it depends on whether you believe the adversary system of judicial decision-making (at the trial level, at least) is a good idea.

Alan concludes that it is a mistake to overrate the capacities of our judiciary.  He warns that lawyers sometimes are blind to the system's faults and limitations because of a belief that the adversary system is "the greatest engine for the search for truth."  And when that happens "we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom."

All that aside, Alan asked me to comment on a slightly different aspect of the issue.

His comment was prompted by the documentary "Paradise Lost" about the "West Memphis Three" case during the filming of which the attorneys for the defendants allowed the filmmakers to have access to some of their conversations with their clients, and to interview the clients while the case was still ongoing.  Alan wants to know my take on the ethics of the defense team's allowing such unrestricted behind-the-scenes access.

There are several issues that come to mind. First, there is the issue of whether the lawyers were trying to "try the case in the media" rather than in the courtroom.  I don't think so, simply becasue the the documentary was not going to be ready before the end of the case.  The footage would only become available until after the case was over.  However, it can be argued that the lawyers were trying to build a record that could later be used to support an appeal.  That is possible, but it is not different from many other cases which generated documentaries - often to support the defense.

I think the more interesting question is whether it is improper to allow the filmmakers to follow the lawyers and clients as they prepared for trial not knowing in advance what was going to be shown in the final version of the documentary.  As long as the clients gave informed consent, I see that as a tactical decision that may or may not turn out to be a good decision down the line.  It is pretty risky, but I guess the lawyers felt strong enough something positive would come out of it.  The one thing the lawyers had to be careful about was disclosing confidential information "on the air" that they would not want broadcast later.

Lastly, of course, I can only assume the lawyers in this case did not have an agreement with the filmmakers to get a media deal since Rule 1.8(d) (some version of which has been adopted in most, if not all, states) says that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."

How not to practice law: start a fist fight during a deposition

Okay, maybe it wasn't a fist fight but still...  The South Carolina Supreme Court has suspended a lawyer for 90 days for slapping a witness before the start of a deposition. The Legal Profession blog summarizes the facts as follows:

[The lawyer-respondent represented the plaintiff in a civil suit and was set to begin taking the deposition of one of the defendants.]  Respondent asked if anyone wanted to take a break.  The defendant, who was seated across the table from respondent, said something to the effect of "No, let's get this crap over with."  Respondent then stood up and pointed at the defendant's face and warned him not to speak to him in that manner.  The defendant stood up and told respondent not to point his finger at him.  Respondent then slapped the defendant in the face.

The lawyer pled "no contest" to a charge of simple assault and battery and and was sentenced to payment of a fine.  The opinion is available here.

This story reminded me of this famous video:

Pro bono opportunities in Chicago

In conjunction with the national pro bono week activities, between Oct. 24 to 28, interested attorneys can attend the Pro Bono and Community Service Fair to learn about pro bono opportunities in Chicago.  There will be free MCLE courses to learn how to do mortgage foreclosure mediation or help those who have been wrongly accused of child abuse or neglect, you can attend the "Breakfast With Judges" to discuss pro bono efforts in our community or participate in a unique workshops titled "Walk a Month in My Shoes: A Poverty Simulation." To get details on dates, times and places, visit the Chicago Bar Association pro bono week website.

John Edwards' Lawyer Faces Conflicts Question

The Blog of the Legal Times has an interesting news story about Abbe Lowell, the attorney for John Edwards.  Edwards is facing a six-count federal indictment in which Justice Department prosecutors say that he received more than $900,000 in illegal campaign contributions.  While the case was under investigation, Lowell was representing (among others) Edwards’ former campaign pollster, Harrison Hickman. But two months ago, after it became clear the case is likely headed to trial, Edwards hired Lowell as his lead attorney. That creates potential conflicts of interest because prosecutors may call Hickman as a witness, according to a new court motion from prosecutors asking for a hearing.  Reportedly, however, all the parties involved have stated hey will consent to the representation so the conflicts may not be a problem. Go here for more details.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What systemic issues do you see in the delivery of legal services and equal access to justice?   How does pro bono fit (or not) into the big picture? The overwhelming majority of low income people appear pro se in court. What should the role of pro bono assistance be for these clients?

Go here to join the conversation.

Florida Court Strikes Down Limits on Lawyer Advertising

On Friday, a federal judge ruled that Florida ad restrictions violate lawyers’ First Amendment rights.  Go here for more information.

Is the federal government trying to make it illegal to practice law?

Here is a link to a short post on the Legal Ethics Forum discussing a bill recently approved by the House Judiciary Committee that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act -- even if the planned activities are legal in the countries where they're carried out.

Suppose a client says to a lawyer, "I'm traveling to Amsterdam and would like to smoke some hash while I'm there. Is that lawful?"  Would answering the question, and providing legal advice, constitute a crime?

Read the Legal Ethics Forum comment here which includes a link to an article in the Huffington Post discussing the issue in more detail.

Today in baseball - and music - history

This post has nothing to do with torts or professional responsibility, but it's my blog, so there!

Did you know today is the anniversary of the very first time a singer sang a personalized version of the national anthem before a sporting event?

On October 7, 1968 Puerto Rican singer/guitarist Jose Feliciano stunned the crowd at Tiger Stadium in Detroit when he sang a non traditional rendition of the national anthem before Game 5 of the World Series between Detroit and St. Louis.  The reaction was not good.  He was booed, criticized, and many radio stations stopped playing his music.  Interestingly, the Tigers won the game and the final two to win the series in seven games.

I am not a big fan of the way many - indeed, most - singers try to change the national anthem these days, but there are a few renditions that I like.  Feliciano's is one of them.  Another one is Marvin Gaye's version before the NBA All-Star game in 1983.

Ironically, Marvin Gaye sang the national anthem in Detroit the day before Feliciano did.  Supposedly, Ernie Harwell specifically asked him to do a traditional rendition of the anthem.  I guess he expected Gaye to try something different.  I don't know if he told Feliciano the same thing...

Also ironically, after Harwell passed away last year, the Tigers had Feliciano sing the exact same version of the anthem before a game to honor his memory.

You can listen to Jose Feliciano's 1968 national anthem here.

You can listen to Marvin Gaye's version in 1968 here and his 1983 version here.

DC to consider rule to require disclosure of information to remedy wrongful conviction

The The District of Columbia Rules of Professional Conduct Review Committee is proposing changes in the D.C. ethics rules.  A short summary of all the proposed changes is available here.  A detailed report including the text of the proposed rules and the committee's report is available here.

The most interesting one is the proposal to adopt a new Rule 8.6 "to require all lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to a court, the convicted person’s counsel, and the convicted person, in the absence of other confidentiality obligations of the lawyer."

As the rule states, however, it does not require disclosure of confidential information.  Thus, this rule would not change the result in a situation like Alton Logan's case.

Given that courts often use the text of the rules to express duties in tort law, one - perhaps unintended - consequence of approving this rule will be to open the door to civil liablity for not disclosing the information. And from there, it might not be long before courts begin to consider extending such a duty to cover other information a la Tarasoff v. Regents of the Univ of California. as in Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979).

Shopping for lawyers by price; good idea?

Here is a comment by popular solo practitioner blog "My Shingle" on a new website modeled after travel sites that allows consumers to comparison shop for lawyers based on price in the same way that they would for hotel rooms or airfare.

Bottom line?  My Shingle concludes that the website "confuses consumers", "creates traps for unwary lawyers and "opens up a Pandora’s box of ethics issues."  In the end, "for a site that purports to promote transparency on lawyer fees, AttorneyFee.com doesn’t just muddy the water for consumers; it converts them into a veritable toxic waste site."

Read the full comment here.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What is the best way to recruit and utilize corporate in house counsel?  Government attorneys? What is the role of rewards/awards in generating pro bono participation? What evidence do you have of their efficacy?  What are your best practices in inspiring and rewarding pro bono participation?

Go here to join the conversation.

Is there such a thing as a potential conflict of interest?

Today we started to discuss conflicts of interest in my class. As we tried to define the concept I asked the students if it makes sense to talk about "potential conflicts" and tried to get them to understand that having a conflict is, in and of itself, a violation of a duty to the client.

Interestingly, over at the Legal Ethics Forum, four law professors recently exchanged views on this.  NYU's Stephen Gillers started it off by using an example from journalism ethics saying that "if there is an appearance of a conflict there is an actual conflict. If the reporter succumbs to the conflict by favoring the clients of the speakers bureau, that's not a conflict. It's a breach of trust." Also, Hofstra's Monroe Freedman commented on the shameful way courts approach conflicts in criminal cases Read the rest of the conversation here.

Indiana Supreme Court on the reasonableness of a contingency fee

A few days ago, I spent some time discussing contingency fees with my students.  Among other things, we talked about whether the reasonableness of a contingency fee should be evaluated based on the terms of the agreement, the circumstances at the time the agreement is reached, the end result (the amount recovered) or a combination of all of them.

Just a day too late for our discussion, but almost right on cue, the Legal Profession blog is reporting today on a new case in which the Indiana Supreme Court imposed a suspension of at least 120 day for "misconduct by collecting a clearly unreasonable and exploitive [contingecny] fee."

In this case, a client approached a recently admitted attorney [which is relevant since the rules list the lawyer's experience as one of the factors used to evaluate the reasonableness of a fee] asking for help to get access to money that was in a trust.  The lawyer agreed to help based on a contingency agreement.  Another lawyer who had been serving as the trustee of the trust agreed to resign as trustee, and the new lawyer took over.  After the transition, the new lawyer paid himself one-third of the funds held in trust, nearly $15,000. The client got nearly $30,000, which presumably was quickly spent.

The trust had been created to protect the client and "to prevent rapid depletion by [the client's abusive, substance abusing boyfriend]."

In support of the view that a contingency fee should be evaluated based on the circumstances at the time of the agreement, the court emphasized that a contingent fee is not unreasonable "every time a case turns out easier or more lucrative than contemplated by the parties at the outset."

However, the court added that a fee that is not unreasonable at the outset may become unreasonable in light of later developments:

...Respondent may have reasonably believed at the outset that removing Ross as trustee would be contested (despite documentation indicating Ross was willing to step aside in favor of a qualified successor). He may have even reasonably questioned the amount of money in the trust upon which his fee would be calculated and collected (despite documentation that $42,500 had been deposited in it just a few months earlier). But within two or three days, Ross agreed to resign as trustee in favor of Respondent, and Respondent had assumed control over the trust, knew the balance in the trust account, had gained access to those funds, and had cut himself a check for his fee. At this point, he knew the case did not involve any complex issues, prolonged time commitment, risk of no recovery, or even any opposition.

The case is called In the Matter of Powell and it is available here.

Analysis of ABA's new formal ethics opinion 461

Go here for an analyisis of the ABA's new opinion 11-461, "Advising Clients Regarding Direct Contacts with Represented Persons."


Thanks to the Legal Ethics Forum for the link.

IL amends rules on CLE

The Illinois Supreme Court has amended some of the rules regarding Continuing Legal Education for Illinois attorneys.  Go here for more information.

Cash for kids judge sentenced

On Friday, Pennsylvania judge Michael Conahan was sentenced to 17.5 years in prison for his role in the cash-for-kids scandal. Conahan and judge Mark Ciavarella Jr. were accused in 2009 of sending teenagers to privately run youth detention centers in exchange for kickbacks from the builder of the detention facilities.  Ciavarella, was sentenced in August to 28 years in prison.  For more, go here.

Supreme Court grants review of case on attorney immunity

The Supreme Court announced this morning that it will review a case on "whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee." The case is called Filarsky v. Delia.

In this case, the District Court found the attorney was protected by qualified immunity, but the Court of Appeals for the Ninth Circuit reversed.  The opinion of the Court of Appeals is available here.  For all the documents filed before the Supreme Court go here.

For more on some surprising announcements by the Supreme Court today - on a different subject, go here.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

Some lawyers prefer to give money rather than their time and skill, and some legal services/pro bono organizations would also prefer this arrangement. Others favor both a monetary and personal commitment to pro bono work/legal services. How do you see this issue? What suggestions do you have?

Go here to join the conversation.

Recent disciplinary decisions in Illinois

The Illinois Supreme Court has announced 70 new disciplinary orders. The Court disbarred 12 lawyers, suspended 43, censured 10, remprimanded two and transferred three others to inactive disability status.

The disbarment orders were for misappropriation (5), charging unreasonable fees (3), failing to return unearned fees or retainers (3), unathorized practice of law in a different state (2), convictions for fraud/tax evasion (2) and dishonesty (1).  The numbers add to more than 12 because some of the attorneys engaged in more than one of these examples of misconduct.

Go to Illinois Laywer Now (here) for details on all the cases.

Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.

In a slightly different type of case, the Oregon Supreme Court recently ruled, however, that a convicted criminal defense client need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available here. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case.

ABA Committee on Professional Responsibility issues new formal opinion

The ABA Standing Committee on Professional Responsibility has issued a new Formal Opinion (No. 11-461 August 4, 2011) in which it discusses whether an attorney violates the "no contact rule" by helping a client communicate directly with another party that is represented by counsel.

The bottom line is essentially this:  A lawyer may not communicate with a person the lawyer knows is represented by counsel unless that person’s counsel has consented to the communication or the communication is authorized by law or court order, and a lawyer may not use an intermediary to communicate directly with a represented person in violation of the “no contact” rule.  On the other hand, it sometimes is desirable for parties to a litigation or transactional matter to communicate directly with each other even though they are represented by counsel.  For this reason, since parties to a legal matter have the right to communicate directly with each other, a lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. Such assistance may not, however, result in overreaching by the lawyer.

The full text of the opinion is available at the ABA's Center for Professional Responsibility website here or here.

How not to practice law: write incomprehensible complaints and briefs; Court suggests disbarment for lawyer's inability to write

A panel of the 7th Circuit Court of Appeals recently ordered an attorney to show cause why he should not be disbarred (from the federal court) after finding that the lawyer repeatedly filed "unintelligible" court papers that were "riddled with errors" and full of gibberish, including a 345-word sentence.

The lawyer had been given three opportunities to correct the brief in the case but “[e]ach iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing.”

For more on the story go here, here and here.  For a copy of the court's opinion go here.

On the possible liability of a lawyer for negligence in handling a settlement ... in Australia

I have commented on the issue of whether a lawyer can be found liable for negligence in a case if the client decides to settle here, here and here.  Interestingly, this is now under debate in Australia.  Here is a link to a short comment by the Australian Professional Liability Blog on the issue.  It provides a survey of the relevant cases and the state of the law down under.

South Carolina continues to struggle with the notion of conflicts of interest

I have argued before that the South Carolina Supreme Court does not understand basic principles of conflicts of interest (see here) and a recent decision involving a lawyer who had "romantic feelings for a client" prompts me to repeat my conclusion.

In this new case (In re Poff, S.C., available here), the court held that having what the court referred to as romantic feelings for the client doesn't create a conflict of interest that rises to the level of an ethics rule violation.  The court concluded that the lawyer's unrevealed romantic interest in the client, "in the absence of any evidence of its effect on his representation, does not, in our view, represent a conflict that rises to the level of a Rule violation."

In other words, the court finds that there is no conflict of interests unless the client is harmed by the conflict of interest.  This view is wrong - in general and as it applies to the facts of the case itself.

As I have stated elsewhere, the court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a harm from happening.  A conflict exists if a lawyer from finding himself or herself in a situation where there is a significant risk that the representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.  The significant risk is what is important.  If there is a significant risk that the lawyer might break a rule there's a conflict. Whether the lawyer breaks the rule is irrelevant.

Thus it is incorrect to think that there is a conflict only if the conflict causes harm to the representation.  On the contrary, it is the risk to the representation what determines that there is a conflict of interest.

The lawyer in this case had a conflict.  The conflict existed because his feelings for the client created a significant risk that the representation could be affected.  Period.  For example, there was a risk that the lawyer would disclose confidential information about the client to others when talking to them about his feelings toward her.... which, not surprisingly, is what actually happened in the case, and which brings me to my next point.  It is incredible that the court would say the representation was not affected since the court found the attorney violated his duty of confidentiality to the client!  

What is the proper level of discipline for this?

Suppose a lawyer is practicing law in a state where he or she is not admitted.  Regardless of whether, at least of paper, that state can impose discipline the lawyer, what the state really wants to do is inform the state where the lawyer is admitted and ask that state to take action.  What level of discipline should the state where the lawyer is admitted apply to a lawyer who was caught practicing law without a license in a different state?

A new case from New York provides some light on the subject.  In this case, a lawyer licensed to practice in New York was “disbarred” by the highest court in Maryland for several acts of misconduct, including the unauthorized practice of law. See, Maryland Attorney Grievance Comm'n v. Sucklal, 12 A.3d 650 (Md. 2011).  Since the lawyer was never admitted in Maryland, "disbarment" in that context means permanent exclusion from eligibility for law practice in Maryland.

Back in New York, however, the attorney was only suspended for one year (with the possibility of reinstatement after only six months).  The case is called In re Sucklal.

This situation poses and interesting question about the concept of reciprocal discipline.  I think states should have the flexibility to decide their own disciplinary matters and that there may be reasons why a state may not want to impose exactly the same sanction imposed by another state.  But I wonder what is the standard sanction in New York for the unauthorized practice of law.  If it is a one year suspension, I understand the decision of the court.  But if New York disbars attorneys who practice law illegally in New York, why not disbar a New York attorney who practices illegally somewhere else?

ABA Commission has released new proposals for amendments to the ABA Model Rules

The ABA Commission on Ethics 20/20 has released for comment revised proposals for amendments to the ABA Model Rules of Professional Conduct with regard to Outsourcing, Technology and Confidentiality, and Technology and Client Development. In addition the Commission has released updated versions of its proposals concerning foreign lawyers and the ABA Model Rule on Pro Hac Vice Admission, the ABA Model Rule for Registration of In-House Counsel, and ABA Model Rule 5.5.

Comments are due by November 30, 2011. Please check the Commission's website (here), for continued updates regarding proposals, discussion drafts, Commission meetings, and public hearings.

You may view the cover memo from Commission Co-Chairs Jamie S. Gorelick and Michael Traynor and the proposals from these links:

Cover Memo

Outsourcing

Technology and Confidentiality

Technology and Client Development

ABA Model Rule on Pro Hac Vice Admission

ABA Model Rule for Registration of In-House Counsel

ABA Model Rule 5.5

For a comment on the proposal regarding outsourcing go to the Legal Research and Writing Pro blog

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What methods have you found most effective in engaging law students in pro bono?  What type of legal work have you found is most appropriate for law students?  What suggestions do you have for law schools that would result in the graduation of students committed to access for all?

Go here to join the conversation.

Pro bono conversation continues

Following up on the invitation to engage in a conversation about pro bono work during the next few weeks, here are a couple of items:

1.. In a recent speech, retired Supreme Court Justice John Paul Stevens said that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis.  Go here for the full story.

2. Some jurisdictions are considering imposing mandatory pro bono, something that has been considered several times in the past by the drafters of the ABA Model Rules also. In response, Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute, argues that even though "[t]he U.S. legal system is facing a crisis of unparalleled proportions" and that "[t]he legal aid crisis and the courts crisis have morphed into a justice-system crisis" mandatory pro bono is not a good idea. She argues that there are other things all segments of the profession "can and should do to ease the crisis and restore the public's faith in our justice system before resorting to mandatory pro bono."

I tend to agree.  Mandatory pro bono is not necessarily a good idea.  Forcing people to do work they don't want to do usually does not yield good results.  For those who don't want to do the work, I would rather urge them to contribute financially to organizations who do want to do the work and can use the resources.  If we do institute mandatory pro bono, this financial contribution option should be an alternative to meet the requirement.

In her short article, available here, Lardent names seven other things that can be done.  Let me comment on a couple.

She suggests that ABA Model Rule 6.1 should be revised stating that "As one of the co-authors of the ABA's model rule on pro bono adopted in the early 1990s, I can candidly state that it is seriously out of date. Given the scope of the crisis we are facing, the rule's overly broad definition of pro bono — which currently includes discounted fees and bar association service — cannot and should not stand. Pro bono should mean free legal work done on behalf of low-income or disadvantaged clients, period."  I agree that there can be a better way to define pro bono and also that lawyers should be encouraged to do more than simply offer  "discounted fees" for clients who can pay regular fees and who have easy access to legal representation.  I do think, however, as I said before, that contributing financially to legal aid or other organizations created for the purpose of providing legal aid to those who wouldn't otherwise have access to legal representation should be considered a valid way to meet pro bono obligations.

Lardent also suggests that states should make pro bono reporting meaningful. I couldn't agree more.  Some years ago, Illinois adopted a mandatory reporting system.  Lawyers are not required to provide pro bono services but if they do provide it, they have to report it.  When I ask my students how this would work to encourage more people to do pro bono work, they usually say that other lawyers would be "shamed into" doing it when they saw how many other people were doing it, or when they saw other "competing" firms using their pro bono commitment as a marketing tool, and so on.  This is true, and not necessarily a bad thing, but it only works if the reporting results in publicity. Only if the results of the reporting are publicized, and celebrated, will the information have a positive effect on others.   I will post a separate comment on this at some point in the future.

Commission on Legal Ethics 20/20 presentation at the ABA annual meeting

The ABA Commission 20/20 is working on new amendments to the Model Rules of Professional Responsibility.  Here is a video of a presentation to the ABA at the recent annual meeting discussing the work of the Commission. It provides a very good summary of the work of the Commission so far.

Pro bono conversation question of the week

Here are this week's national pro bono celebration questions: What are the best ways for the public interest and private bars to work together to provide high quality legal services to poor and marginalized people? How can we increase collaboration between all segments of the legal community?  What innovative, creative models already do or would result in increased legal services for low income individuals and communities?  Are there new ways of thinking about the delivery of legal services that would result in meeting more need?

Go here to join the conversation.

National Pro Bono Celebration

Building on the success of the annual National Pro Bono Celebrations in 2009 and 2010, the ABA Standing Committee on Pro Bono and Public Service is sponsoring the Celebration again this year October 23 through 29, 2011.  Go here for more information.

The Celebration is a coordinated national effort to meet the ever-growing needs of this country's most vulnerable citizens by encouraging and supporting local efforts to expand the delivery of pro bono legal services, and by showcasing the great difference that pro bono lawyers make to the nation, its system of justice, its communities and, most of all, to the clients they serve.

As part of the Celebration, the Committee is encouraging a national conversation about pro bono.  How can we frame a new way of thinking about and delivering pro bono legal services?

Please contribute to a stimulating national conversation about the future of pro bono work and the delivery of quality legal services. Help shape this approach by sharing your inspired ideas and comments. What has worked for you? What are your best ideas and experiences? What changes are needed and how might they be accomplished? What are the most effective collaborations and partnerships? How can the private and public interest bars work together most effectively to provide access to justice for all?

Twice weekly, on Mondays and Wednesdays, a new question will be posted for your reflection and comments. Please participate often and invite your colleagues to do the same.  You can see the list of questions here.

A national conversation can seed new initiatives and new approaches throughout the country; please join in this dynamic exchange of insights and ideas. Your voice needs to be heard. Join the discussion now.

Former White House Aide suspended for one year only over definition of "moral turpitude" -- UPDATED

In March of 2010, I reported the story that appears below. The case was appealed and the Court of Appeals just announced its decision affirming the decision.  If you remember the original story, go to the bottom for the more recent update.


March 12, 2010:

The Blog of the Legal Times is reporting today that the D.C. Board on Professional Responsibility has recommended to the D.C. Court of Appeals that former White House aide Claude Allen, who pleaded guilty in 2006 to one misdemeanor count of theft of property, be suspended from the practice of law for one year.

Allen, who at one point was nominated by President Bush to the U.S. Court of Appeals for the Fourth Circuit, admitted that, on several occasions, he bought an item at a Target store and then later went back to the store with the receipt, pulled an identical item off the shelves, and used the receipt to “return” it, allowing him to keep the purchased item at no cost.

On these facts, the Board recommended a suspension because, according to its report, bar counsel "failed to prove moral turpitude." Had bar counsel proven moral turpitude, the lawyer would have been disbarred. According to the report, the Board stated that "Allen’s actions were “deceptive and dishonest”" but not enough to show moral turpitude.

I am sorry, I must be missing something.... Let's review,... so the guy goes to the store, lies, cheats and STEALS... repeatedly.... for kicks and giggles.... (I am guessing a White House aide, federal appeals court nominee does not really need a few things from Target that badly!).... and that is not moral turpitude?!?

I guess I have to review what 'moral turpitude' means....

Ok, so let's see... According to the BLT, the Board's report states that “Dishonesty is an important factor in analyzing whether criminal conduct rises to the level of moral turpitude, but not every criminal act of dishonesty involves moral turpitude . . . The key factor, the report says, is “dishonesty for personal gain.""

Hmm... Let me see if I get this.... go to Target, ...lie, ....cheat, ....steal, .... keep money..... "dishonesty for personal gain"?....... Yeah, sorry, ... still don't get it...

How is the conduct here not "dishonesty for personal gain"? Can someone explain this to me?

The guy is a convicted liar and a thief and you are telling me that his conduct is not evidence of dishonesty for personal gain!?

Is the Board saying that it is not so bad because the guy stole "only" about $800 or so.... So stealing is not so bad as long as it is not that much? Is that what you are telling me? Is that a lesson you'd like me to teach my 5 year old?

I think I have made my point. I hope the court disregards the recommendation and does the right thing here. This guy should be disbarred. Period. If he needs psychiatric help, get him help, do whatever, but don't allow him to represent people whose property, lives and money depend on him until he shows he can be trusted. Shame on the Board.

More on the story here.  You can find the Board's report through this link.

UPDATE:  September 8, 2011

More than a year since the decision of the DC Board on Professional Responsibility, the DC Court of Appeals has affirmed the decision and imposed a one year suspension.  On appeal, Bar Counsel had requested that the Court reject the Board's conclusion and order disbarment.  As I argued back when the Board's decision was issued, I agree with Bar Counsel.

But the Court did not agree, holding that a misdemeanor should never be considered, per se, a crime involving moral turpitude - even if it could be considered to be a "serious crime."  But that was not the end of the question.  Finding that the conduct did not involve moral turpitude per se, the court had to evaluate the specific facts of the case to determine if, under the circumstances, the conduct should be considered to have involved moral turpitude.  The court concluded that it did not.

Bar counsel argued that the conduct involved moral turpitude because it was intentional dishonesty for personal gain.  The court saw it slightly differently concluding that, although "it is clear that respondent committed an intentional act of dishonesty, . . . and because respondent kept the stolen items, he actually personally gained from the commission of the theft," the lawyer's actions "were not so much motivated by a desire for personal gain as by psychological disturbances."

I understand the court's reasoning, but I remain unconvinced, particularly when the Hearing Committee who heard the original evidence did not give credit to the testimony of the attorney's doctor whose opinion and diagnosis was described as imprecise and "changing" -- which I take to be a nice way of saying it was unconvincing to say the least.

Judge for yourself and let me know what you think....  The case is called In re Claude A. Allen and the opinion of the court is available here.

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

Discipline for conduct outside the practice of law: conduct as a juror

The rules of conduct clearly state that making false statements to a tribunal constitutes misconduct.  Typically, we think of this as applying to attorneys who participate in a judicial process as an attorney, (ie when representing a client).  But a new case by the Supreme Court of Minnesota reminds us that this principle is broader than that. In this case, the attorney was called to serve as a juror.  During the voir dire process he lied about his past and, for this reason, the Supreme Court imposed a 60 suspension.  The case is called In re Petition for Disciplinary Action against Benjamin Adam Warpeh and it is available here.

Note that this is also an example of discipline for conduct outside the practice of law.

Just goes to show you that, as the old saying goes, "honesty is the best policy."

Thanks to the The Legal Profession Blog for the link.

Groupon for lawyer services

As you know, ABA Model Rule 5.4 prevents a lawyer from sharing fees with non-lawyers other than in some limited cases.  This is also true in most, if not all jurisdictions. Do lawyers violate this rule if they try to attract clients by sharing a percentage of the fee with the service that provides the means for the lawyers to communicate with the possible clients?

This is the business model of the daily coupon system now known as "Groupon" which offers customers discounted deals for future services.

Given the slow economy, many lawyers are looking for ways to attract new clients so it was inevitable that someone would think of using groupon to do so thus raising the question regarding fee-sharing.

At least two states have now published ethics opinions on the issue and both found that using groupon as an advertising method would not violate the rules that ban sharing fees with a non-lawyer. The North Carolina State Bar so concluded in its Formal Ethics Opinion 10: Lawyer Advertising on Deal of the Day or Group Coupon Website (July 14, 2011) (available here) and the South Carolina Bar did so in its Ethics Advisory Opinion 11-05 (available here).  The Virtual Law Practice blog comments on them here.

Given that Groupon takes 50% each time a customer buys the coupon, a lawyer who gets clients' fees through a Groupon deal is, in fact, sharing the fee with Groupon. But I guess I understand the reasoning behind the opinions. The fear behind the ban on sharing fees with non-lawyers is that the non-lawyers could exercise influence over the lawyers thus threatening the lawyers' duty to exercise independent professional judgment. That is not likely to be a problem with Groupon.

Having said that, the fact that it is not unethical to use Groupon to attract clients, does not mean it is a good idea, according to solo practitioner and popular blogger Carolyn Elephant who says that "Groupon’s potential fee-splitting issues that the bar decisions resolve are the least of its problems for lawyers. In my opinion, the ethics decisions are a no-brainer: regulators have no choice but to lighten up on performance-based online advertising (like Google Ads) where participants pay only for results. If not, small firms won’t be able to compete online with large shops which will always have the resources to pay out of pocket for ads and directory listings. So I never got too excited about Groupon’s ethical implications. Instead, I wouldn’t recommend Groupon because the business model simply DOES NOT WORK!"  Read her full comment here.

Should the financial effects of defending against a disciplinary procedure on the accused attorney be taken into account when deciding the appropriate sanction?

Here is a link to a comment on a recent decision in Australia discussing this question. The court's decision is available here.  If I understand the Australian case correctly, apparently the disciplinary authorities can impose fines on attorneys as a form of discipline.  In this particular case, the Tribunal found that the fine would be "at the lower end of the range" because the attorney was also ordered to cover the state's costs.

I have mixed feelings about this.  I understand that adding the amount the attorney would have to pay in costs and fines might result in a significant expense, but I think the punishment should fit the crime, as the saying goes. If the conduct is particularly bad, the punishment should be harsh.  At least in theory, this is the more effective way to achieve deterrence.

Thoughts on discipline

A couple of days ago, I posted a note about a few new cases involving lawyers who prepared wills for clients in which the lawyers named themselves or their wives as beneficiaries.  Using one of these cases as the basis for his argument, Mike Frisch of the the Legal Profession blog has posted some thoughts on lawyers' discipline here.

He starts by arguing that "[i]f ever there is a case to be made for non-public discipline," one of those three cases is it because it involved an aging practitioner who probably just made a good faith mistake. He had checked case law that was later trumped by changes in the governing rule, he acted in a manner that negates any hint of an improper intent and, in the end, the "inheritance" was an end table and some tools. From there he goes on to discuss the other possible end of the spectrum when it comes to discipline: a "zero tolerance" policy for ethics violations.  He thinks that such a system would not only be a bad idea, it would never work.

Should a bar prosecutor be able to exercise discretion and spare a senior lawyer in the process of winding down a 60 + year practice of the shame of a public sanction?  

I do not think so.  I don't think there is a good case to be made for private discipline.  I think all discipline, to be fully effective, should be public.  I think that the better approach is to continue to allow the authorities to decide the appropriate sanctions to be imposed on a case by case basis.  That way, the attorney who makes a relatively minor mistake would receive a minor sanction.  Yet, if the sanction is public, the attorney - and others - would learn from that mistake and be more inclined not to engage in similar conduct in the future.

Should the court have imposed sanctions in lawsuit for "bad mothering"?

Tort reformers love to claim that there are too many frivolous lawsuits filed in this country. Even though the evidence does not necessarily back up the argument, every now and then a new case comes along that helps them advance the allegation.  Here is the latest one; one that includes some laughable claims for which the lawyers representing the plaintiffs were lucky not to get disciplined.

In this case, two adult children sued their mother - whom the father had divorced - arguing that she was a bad mother. One of the lawyers for the plaintiffs was the plaintiff's own father and ex-husband of the defendant.  Among other things, one of the plaintiffs alleged that his mother told him - when he was 7 years old - that she would call the police if he didn’t buckle his seat belt, that when he went to college she did not send him a "care package" until his third year there, that she either did not send birthday cards or that, when she did, she did not send gifts and that she changed her last name when she remarried.

Based on these and other similar allegations (you really should read the opinion to get an accurate impression of the allegations), the children argued the mother's conduct constituted either intentional or negligent infliction of emotional distress.  In response, the court found for the defendant and dismissed the claims finding - correctly - that the allegations simply did not support a prima facie case.  Many of the allegations, the court concluded, "consist or snide and insulting remarks" and relate to parental discipline, which are not actionable.

As the court suggests, maybe the mother was not generous or fully sensitive to the needs of her children, but that is not conduct for which the law recognizes a remedy in tort law.  A ruling in favor of the children, the court said, “could potentially open the floodgates to subject family child rearing to nonconstructive excessive judicial scrutiny and interference."

The case is called Miner v Garrity and you can read the order of the court dismissing the complaint here.

For more on the story, go to the Chicago Tribune or take a look at the coverage in Lowering the Bar - a blog dedicated to legal humor,  and to the comments by readers of the Wall Street Journal law blog - all of which either make fun of the lawyer and plaintiffs or wonder why the plaintiffs' lawyers were not sanctioned.

How not to practice law: prepare a will for the client in which the client names you or your wife as the beneficiary

There must be something going around about this...  Three separate cases reported within the last couple of weeks involved attorneys getting disciplined for preparing wills in which they named themselves or their wives as beneficiaries.

In one case, a New York attorney appointed as a guardian to an incapacitated person was disbarred for helping her prepare a will in favor of the attorney's wife.  Interestingly, he used her maiden name.  I wonder why? You can read the opinion here.

In a similar case, however, the Illinois Review Board found that a censure was the appropriate sanction for an  attorney who drafted a will that left a small portion of the deceased's residual estate to the attorney's wife.  That opinion is available here.

In the third case, the Illinois Review Board recommended that a public censure for an attorney who drafted a series of trusts and wills in which he was one of the beneficiaries. In this case, the board found it significant that there was a close, longstanding relationship between the attorney and the deceased.  That opinion is available here.

Discipline for conduct outside the practice of law

One of the first lessons I want my students to learn is that the disciplinary authorities can, and often do, discipline an attorney for conduct outside the practice of law.  There are many cases that can be used to illustrate this, and now we have a brand new one courtesy of the Illinois Hearing Board.  In this case, called In the Matter of Golden, the Board concluded that the attorney in question lied to his daughter's school so that she could get financial aid for which she did not qualify. He submitted financial aid applications which included false representations and fraudulently altered documents for three separate academic years. Even though the conduct was not within the practice of law and even though the attorney had no record of prior discipline, the Board found the conduct was so dishonest that the attorney should be disbarred.  You can read the opinion here.

New Formal Opinions from the ABA Standing Committee on Ethics and Professional Responsibility

Last month the ABA's Committee on Ethics and Professional Responsibility issued two new formal opinions.  There are available through the website of the ABA Center for Professional Responsibility.  Here are the official summaries:

Formal Opinion 11-459: Duty to Protect the Confidentiality of E-mail Communications with One’s Client

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party. 

Read the full opinion here.

Formal Opinion 11-460: Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. Read the full opinion here.