Toward the end of last year, I posted several comments on the reports on prosecutorial misconduct in the Ted Stevens case. Go here and here for more on that. Part of the story back then was that a judge found evidence of widespread and intentional concealment of evidence on the part of the prosecutors.
However, the judge has not released his report yet and today the New York Times published a short editorial asking for its release and criticizing the Justice Department for not calling for its release.
Go here to read the editorial.
Tuesday, February 7, 2012
DC considers new rule to allow disclosure to remedy wrongful conviction
The District of Columbia Bar is considering enacting a new rule (designated as Rule 8.6) to require 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 the court, unless the information is protected by the duty of confidentiality. The rule expresses good intentions, but because it is not crafted as an exception to the duty of confidentiality, I am afraid it will prove to be of minimal value.
It is interesting to note that the ABA Model Rules impose a duty on prosecutors to disclose information that suggests a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted (Model Rule 3.8(g)), but DC has not yet adopted this section of the rule and the proposal for DC Rule 8.6 makes the point that if there is going to be a duty to disclose this type of information it should apply to all lawyers, not just to prosecutors.
DC's proposal is an approach to the issues raised a few years ago by the Alton Logan incident, made famous by a 60 minutes segment (available here). As you probably remember, in that case two lawyers were told by one of their clients that he (the client) was guilty of the crime for which Mr. Logan was being tried separately. The lawyers tried to get their client to allow them to disclose the information but he did not consent. Eventually, the lawyers convinced the client to allow them to disclose the information after the client's death. He agreed to that, and then proceeded to live for 26 more years which Mr. Logan spent in prison for a crime he did not commit.
Shortly after the former client's death, the attorneys disclosed the information and Mr. Logan was released.
Partly in response to this incident, the Ethics Committee of the ABA’s Criminal Justice Section ("CJS") prepared a proposal to amend Model Rule 1.6 to recognize a new exception to the duty of confidentiality which would have allowed an attorney to disclose confidential information about a deceased client that the lawyer believed necessary to prevent or rectify a wrongful conviction. However, the proposal received little support.
A second proposal was then drafted to amend paragraph six of the comment to Model Rule 1.6 to limit the new proposed discretionary disclosure even more by allowing it only in cases where an individual was sentenced to death for a crime that he did not commit and to explain the discretion should be exercised very rarely. This second proposal was also rejected.
The proposal in DC is fundamentally different because it is actually not an exception to the duty of confidentiality. Proposed section 8.6(b) seems to say that if the attorney has a duty to keep the information confidential, then the attorney has to abide by that duty. Interpreted this way, the new rule really would not provide a solution to the dilemma in a case like Alton Logan's. As it is written, the rule would only apply to a lawyer who obtains the relevant information in a way that is not covered by the duty of confidentiality and it is hard to imagine how that would be the case.
Here is a link to the current text of the proposal.
It is interesting to note that the ABA Model Rules impose a duty on prosecutors to disclose information that suggests a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted (Model Rule 3.8(g)), but DC has not yet adopted this section of the rule and the proposal for DC Rule 8.6 makes the point that if there is going to be a duty to disclose this type of information it should apply to all lawyers, not just to prosecutors.
DC's proposal is an approach to the issues raised a few years ago by the Alton Logan incident, made famous by a 60 minutes segment (available here). As you probably remember, in that case two lawyers were told by one of their clients that he (the client) was guilty of the crime for which Mr. Logan was being tried separately. The lawyers tried to get their client to allow them to disclose the information but he did not consent. Eventually, the lawyers convinced the client to allow them to disclose the information after the client's death. He agreed to that, and then proceeded to live for 26 more years which Mr. Logan spent in prison for a crime he did not commit.
Shortly after the former client's death, the attorneys disclosed the information and Mr. Logan was released.
Partly in response to this incident, the Ethics Committee of the ABA’s Criminal Justice Section ("CJS") prepared a proposal to amend Model Rule 1.6 to recognize a new exception to the duty of confidentiality which would have allowed an attorney to disclose confidential information about a deceased client that the lawyer believed necessary to prevent or rectify a wrongful conviction. However, the proposal received little support.
A second proposal was then drafted to amend paragraph six of the comment to Model Rule 1.6 to limit the new proposed discretionary disclosure even more by allowing it only in cases where an individual was sentenced to death for a crime that he did not commit and to explain the discretion should be exercised very rarely. This second proposal was also rejected.
The proposal in DC is fundamentally different because it is actually not an exception to the duty of confidentiality. Proposed section 8.6(b) seems to say that if the attorney has a duty to keep the information confidential, then the attorney has to abide by that duty. Interpreted this way, the new rule really would not provide a solution to the dilemma in a case like Alton Logan's. As it is written, the rule would only apply to a lawyer who obtains the relevant information in a way that is not covered by the duty of confidentiality and it is hard to imagine how that would be the case.
Here is a link to the current text of the proposal.
Friday, February 3, 2012
Five myths about pro bono
Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has published a short article called Five Myths about Pro Bono in which she discusses, well, five myths about pro bono. It is available here.
Thursday, February 2, 2012
Defendant's referral service... or a conflict?
Here is an interesting story from the Baltimore Sun about a hospital that apparently has an agreement with a number of lawyers in the area to whom it refers cases when the hospital feels they might be sued for negligence. What's strange about this? That the person they are referring to the lawyer is the possible plaintiff. As described in the article, "several medical systems — including MedStar Health, LifeBridge Health and the University of Maryland Medical System, which collectively run about two dozen hospitals — keep lists of vetted lawyers who will accept patient cases for lower fees, often with the expectation that claims will be settled quickly."
On the one hand, I don't necessarily see something wrong in a person recommending a lawyer to another who will eventually be their adversary. Lawyers who practice in a particular area of law get to litigate against each other repeatedly, get to know each other, might develop good working relationships based on respect etc.
But this usually takes place informally and it involves individuals. What the article is describing seems to be quite different. It sounds like a system based on a preconceived agreement with the hospital. It sounds like the hospital will refer possible plaintiffs to lawyers who have agreed with the hospital to help the hospital get the matter resolved quickly. Looked at this way, it sounds very problematic. There is the risk that lawyers on the referral lists (because they want to get more cases referred to them) may not want to push for the best deal for the patients.
On the one hand, I don't necessarily see something wrong in a person recommending a lawyer to another who will eventually be their adversary. Lawyers who practice in a particular area of law get to litigate against each other repeatedly, get to know each other, might develop good working relationships based on respect etc.
But this usually takes place informally and it involves individuals. What the article is describing seems to be quite different. It sounds like a system based on a preconceived agreement with the hospital. It sounds like the hospital will refer possible plaintiffs to lawyers who have agreed with the hospital to help the hospital get the matter resolved quickly. Looked at this way, it sounds very problematic. There is the risk that lawyers on the referral lists (because they want to get more cases referred to them) may not want to push for the best deal for the patients.
How not to practice law: pretend to be a doctor
About a year ago, I reported on an unusual case where a lawyer tried to offer an expert opinion as a doctor in one of his cases. Today, the Legal Profession blog is reporting on a case in which an attorney got a two year suspension for falsely claiming to be a doctor. The case is In re Susan Friery and the order of the court is available here.
Practicing law before passing the bar or appearing pro-se?
The other day, I posted a note about whether a suspended lawyer can represent others in a setting where private individuals are allowed to do it (here). Now comes this short transcript of an actual proceeding from "On the record in Cook County" which is a blog that provides humorous transcripts from proceedings in Cook County courts. Today's entry is as follows:
Judge: Did you write this motion yourself, or do you have counsel present?
Defendant: Yes, I was aided by counsel who is here.
Judge: Counsel, would you care to stand up and tell me about this motion?
(no response for 20 seconds)
Judge: Counsel? Are you a lawyer?
Counsel: Well, I haven't passed the bar your honor.
Judge: Motion is denied.
Judge: Did you write this motion yourself, or do you have counsel present?
Defendant: Yes, I was aided by counsel who is here.
Judge: Counsel, would you care to stand up and tell me about this motion?
(no response for 20 seconds)
Judge: Counsel? Are you a lawyer?
Counsel: Well, I haven't passed the bar your honor.
Judge: Motion is denied.
New Jersey governor refuses to sign bill expanding waiting period rule
According to a recent report in the ABA/BNA Lawyers' Manual on Professional Conduct, an anti-solicitation bill (S 2316), which the New Jersey legislature approved January 9, died when Governor Christie opted not to sign it. The bill stated that lawyers would have faced the prospect of going to jail if they sent written solicitations to accident victims—including people identified in motor vehicle accident reports—within 30 days of the incident. The current waiting period provision in New Jersey (N.J. Stat. §2C:40A-4), which was enacted in 1999, makes it a crime for professionals to solicit accident victims via in-person, telephone, or electronic contact during the first 30 days following an accident. The new bill would have extended that prohibition in two key ways. First, it would have applied the provision to written solicitation and, second, it would have outlawed solicitation of people identified in motor vehicle accident reports.
The choice of banning solicitation other than in writing is interesting and consistent with the proper analysis. As you probably recall, in Florida Bar v. Went For It, the US Supreme Court decided that it would be constitutional for a state to impose a waiting period on written communication. But the opinion was unconvincing and could not be reconciled with applicable precedent.
By limiting the waiting period provision to circumstances that present the so-called "Ohralik dangers" and refusing to extend it to cases of written communication, in which the Supreme Court has decided those dangers are minimal, New Jersey has adopted the correct view on the issue.
The choice of banning solicitation other than in writing is interesting and consistent with the proper analysis. As you probably recall, in Florida Bar v. Went For It, the US Supreme Court decided that it would be constitutional for a state to impose a waiting period on written communication. But the opinion was unconvincing and could not be reconciled with applicable precedent.
By limiting the waiting period provision to circumstances that present the so-called "Ohralik dangers" and refusing to extend it to cases of written communication, in which the Supreme Court has decided those dangers are minimal, New Jersey has adopted the correct view on the issue.
Be careful when setting up a website
Here is a good example of the many things that can go wrong when using a firm website. The Legal Profession blog is reporting on a case in which an attorney was publicly reprimanded by the South Carolina Supreme Court for misconduct related to the use of a website. Go here for the story and here for the court's opinion.
Among other problems, the website contained the following rule violations:
1. material misrepresentations of fact and materially misleading statements
2. statements likely to create unjustified expectations about the results respondent could achieve
3. statements comparing respondent's services with other lawyers' services in ways which could not be factually substantiated
4. descriptions and characterizations of the quality of respondent's services
5. statements overstating and exaggerating respondent's reputation, skill, experience, and past results; and
6. statements using the word "specialist" even though respondent is not certified by this Court as a specialist.
Among other problems, the website contained the following rule violations:
1. material misrepresentations of fact and materially misleading statements
2. statements likely to create unjustified expectations about the results respondent could achieve
3. statements comparing respondent's services with other lawyers' services in ways which could not be factually substantiated
4. descriptions and characterizations of the quality of respondent's services
5. statements overstating and exaggerating respondent's reputation, skill, experience, and past results; and
6. statements using the word "specialist" even though respondent is not certified by this Court as a specialist.
New York State Bar may revisit its position on nonlawyer ownership of firms
Although the New York State Bar Association remains opposed to nonlawyer ownership of law firms, its president recently stated that the organization will study whether nonlawyers should be allowed to own a stake in law firms. For more on the story, go to the Wall Street Journal law blog, which has a link to the remarks by the president of the NYSBA (here)
The last time the issue was discussed by the full ABA (in 2000), a proposal to allow for nonlawyer ownership in law firms was defeated. The New York State Bar Association, along with several other state bar associations, argued against the proposal, warning that it could compromise core values of the profession such as loyalty, independence and confidentiality.
The current ABA Commission working on possible new amendments to the Model Rules (the 20/20 Commission) is considering a new proposal on the subject - available here. Under this version, non-lawyers could own stakes in law firms, but lawyers would still have to maintain a controlling financial interest and voting rights in the firm. For more information on the work of the Commission go here.
The last time the issue was discussed by the full ABA (in 2000), a proposal to allow for nonlawyer ownership in law firms was defeated. The New York State Bar Association, along with several other state bar associations, argued against the proposal, warning that it could compromise core values of the profession such as loyalty, independence and confidentiality.
The current ABA Commission working on possible new amendments to the Model Rules (the 20/20 Commission) is considering a new proposal on the subject - available here. Under this version, non-lawyers could own stakes in law firms, but lawyers would still have to maintain a controlling financial interest and voting rights in the firm. For more information on the work of the Commission go here.
Tuesday, January 31, 2012
On the story about a lawyer who sued himself
Attorney ads
The Criminal Justice Degrees blog has posted a selection of Top ten "weirdest and worst" lawyer ads. You can watch them all here.
Monday, January 30, 2012
Can a suspended attorney engage in advocacy if a non-lawyer can do it?
Can a suspended attorney engage in advocacy of a type which is permitted to nonlawyers? Last year, the Supreme Court of Pennsylvania confronted the issue and decided the answer should be NO.
In that case, a suspended lawyer undertook employment representing claimants and employers before the Pennsylvania Unemployment Compensation Board of Review, a tribunal which allows nonlawyer representation. Disciplinary counsel brought a petition charging Bargeron with contempt, alleging that in representing clients he violated a rule which prohibits a suspended lawyer from law-related activities including “appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.” In response, the lawyer cited Harkness v. Unemployment Comp. Bd., 920 A.2d 162 (Pa. 2007), in which the Pennsylvania Supreme Court held that a nonlawyer who represented claimants before the UCBR was not practicing law. Confronted with the issue, the Court determined the lawyer was in violation of the rule and ordered him to cease and desist from representing clients before the UCBR.
The case is called In the Matter of Bargeron and it is available here. More information here.
In that case, a suspended lawyer undertook employment representing claimants and employers before the Pennsylvania Unemployment Compensation Board of Review, a tribunal which allows nonlawyer representation. Disciplinary counsel brought a petition charging Bargeron with contempt, alleging that in representing clients he violated a rule which prohibits a suspended lawyer from law-related activities including “appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.” In response, the lawyer cited Harkness v. Unemployment Comp. Bd., 920 A.2d 162 (Pa. 2007), in which the Pennsylvania Supreme Court held that a nonlawyer who represented claimants before the UCBR was not practicing law. Confronted with the issue, the Court determined the lawyer was in violation of the rule and ordered him to cease and desist from representing clients before the UCBR.
The case is called In the Matter of Bargeron and it is available here. More information here.
Sunday, January 29, 2012
A different type of prosecutorial misconduct
Typically, the more recent cases about prosecutorial misconduct we have discussed (and there have been many), have involved the duty to disclose information to the defense or issues related to improper arguments. Here is a link to a new case from the Indiana Supreme Court that involves a different type of misconduct. If I had to classify it, I'd place it under the notion of "scope of representation and allocation of authority between client and lawyer," which is the title of Model Rule 1.2.
The case is called In the Matter of Flatt-Moore and it involved a prosecutor who "surrender[ed] her prosecutorial discretion in plea negotiations entirely to the pecuniary demands of the victim of the crime." In other words, she allowed the victim of the crime to dictate the terms of the plea agreement. The court found that this conduct involved a prohibited conflict of interest and was prejudicial to the administration of justice. The key to the case, though, was the fact that the terms of the plea were based on restitution of an amount that was higher than the amount of injury actually caused by the defendant. The victim was trying to use the criminal process to obtain advantage in its civil claims against the defendant. The prosecutor either did not realize this or knowingly tried to help the victim.
The court noted that although a victim is permitted to have significant input in the plea bargaining process, the prosecutor engaged in misconduct by ceding to the victim absolute control of the negotiations concerning the plea.
Thanks to the Legal Profession blog for the information.
The case is called In the Matter of Flatt-Moore and it involved a prosecutor who "surrender[ed] her prosecutorial discretion in plea negotiations entirely to the pecuniary demands of the victim of the crime." In other words, she allowed the victim of the crime to dictate the terms of the plea agreement. The court found that this conduct involved a prohibited conflict of interest and was prejudicial to the administration of justice. The key to the case, though, was the fact that the terms of the plea were based on restitution of an amount that was higher than the amount of injury actually caused by the defendant. The victim was trying to use the criminal process to obtain advantage in its civil claims against the defendant. The prosecutor either did not realize this or knowingly tried to help the victim.
The court noted that although a victim is permitted to have significant input in the plea bargaining process, the prosecutor engaged in misconduct by ceding to the victim absolute control of the negotiations concerning the plea.
Thanks to the Legal Profession blog for the information.
Budget cuts and layoffs in legal assistance
Last November the federal government enacted a bill that slashed federal funding for civil legal assistance to the poor by about 14% — from $404.2 million to $348 million, which is the lowest level since 2007. For this reason, civil legal aid groups that receive money from the Legal Services Corp. have estimated that they will cut 163 lawyers and 230 other employees this year. This is bad news at a time when it is universally agreed that the vast majority of the legal needs of the poor are not met and that most people do not have access to legal representation. For more on this story go to to the Blog of the Legal Times and the Wall Street Journal law blog.
Attorney sued himself
Lowering the Bar has a short comment (here) on a very old story involving a lawyer who sued himself on behalf of a client. The story is based on this clip which appeared in the New York Times in August of 1936 (I told you it was an old story)...
Wednesday, January 25, 2012
NY Bar Ass'n Committee on Ethics approves use of "Groupon"
Because ABA Model Rule 5.4 prevents a lawyer from sharing fees with non-lawyers in most cases, there has been some discussion on whether lawyers can 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.... or in short: can lawyers advertise and attract clients by participating in "Groupon"?
Back in September I wrote about ethical opinions in North and South Carolina on the issue (here).
The question is now back in the news because the New York Bar Association's Committee on Ethics has issued a new opinion that concludes that "a lawyer may properly market legal services on a “deal of the day” or “group coupon”website, provided that the advertisement is not false, deceptive or misleading, and that the advertisement clearly discloses that a lawyer-client relationship will not be created until after the lawyer has checked for conflicts and determined whether the lawyer is competent to perform a service appropriate to the client."
You can read the opinion here.
Thanks to the Wall Street Journal law blog for the information.
Back in September I wrote about ethical opinions in North and South Carolina on the issue (here).
The question is now back in the news because the New York Bar Association's Committee on Ethics has issued a new opinion that concludes that "a lawyer may properly market legal services on a “deal of the day” or “group coupon”website, provided that the advertisement is not false, deceptive or misleading, and that the advertisement clearly discloses that a lawyer-client relationship will not be created until after the lawyer has checked for conflicts and determined whether the lawyer is competent to perform a service appropriate to the client."
You can read the opinion here.
Thanks to the Wall Street Journal law blog for the information.
Lawyer faces criminal charges after showing up drunk to court
I have written before on cases involving attorneys showing up drunk to court (see here, here and here, for example). Today the ABA Journal is reporting on a new case in which "a California lawyer has been criminally charged after allegedly appearing at court to represent clients at hearings in a drunken state." According to the Visalia Times, the lawyer had twice the legal limit of alcohol in her system when she was given a breath-alcohol test as she entered the courthouse. For more on this case go here, here and here.
Tuesday, January 24, 2012
Is creating a website a form of solicitation or just advertising?
Assume there is a big accident involving hundreds of victims and a lawyer sets up a website specifically targeted to victims to lure them into hiring the lawyer to file claims on their behalf. The lawyer is not sending out e-mails, spam, letters or visiting anyone in person. He just creates a website and waits for people to find it. Then assume that the jurisdiction where this happens has a 30 day "waiting period" type rule and the website was operating in less than 30 days after the accident. Has the attorney violated the waiting period rule by creating the website?
Obviously, at least in part, the answer depends on the actual language of the rule. Suppose the rule says it is a violation of the rule to "contact" a victim. Is setting up a website a way to "contact" victims.
This question is the subject of debate now in New York, where an attorney created a website in an attempt to sign up people who were stuck in the subway during the recent blizzard. The Daily News has more on the story.
New York blogger Eric Turkewitz has published a good comment in which he concludes that setting up the website violates New York’s 30-day anti-solicitation rule which states, in relevant part, that "No solicitation relating to a specific incident involving potential claims for personal injury . . . shall be disseminated before the 30th day after the date of the incident . . ."
There is no question in my mind that the website is targeted to a specific audience, but it is not so clear whether setting up a website is a form or "disseminating" solicitation materials.
A website is not something that is sent to the victims (like the letter in Shapero) or something that people receive when they don't expect it (like the newspaper page in Zauderer or a billboard that you did not expect to see when driving). The website is out there, somewhere in cyberspace where people have to actually look for it.
Obviously, if the lawyer is publicizing the website by other means - like letters or ads, etc. - the issue is easier to deal with, but assuming the lawyer simply created the website and let it sit there and people find it when they try to search for news on the blizzard or something like that, I am not so sure the question is as clear cut.
Having said that, as Eric Turkewitz explains, in New York, however, the question appears to be covered by Rule 7.3(c)(5) which states that a website maintained by the lawyer or law firm is not a form of solicitation unless the web site is designed for and directed to or targeted at a prospective client affected by an identifiable actual event or occurrence or by an identifiable prospective defendant.
UPDATE: Thanks to Eric Turkewitz again for the original story and for this update: the website in question has been turned off.
UPDATE (2/24/2012): Last September, the ABA's 20/20 Commission circulated a proposal which, among many other things, proposed to add a paragraph to the comment to Model Rule 7.3 which says, in part, that "a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches."
In the example we are discussing here, the website did not seem to be directed to the general public, but it would "only be found in response to a request for information", etc. So is it an ad or is it solicitation?
UPDATE (August 2012): The proposed amendment was adopted by the ABA and now appears as the first paragraph of the comment to Model Rule 7.3. For more on the amendments to the rules adopted in August 2012 go here, here and here.
Obviously, at least in part, the answer depends on the actual language of the rule. Suppose the rule says it is a violation of the rule to "contact" a victim. Is setting up a website a way to "contact" victims.
This question is the subject of debate now in New York, where an attorney created a website in an attempt to sign up people who were stuck in the subway during the recent blizzard. The Daily News has more on the story.
New York blogger Eric Turkewitz has published a good comment in which he concludes that setting up the website violates New York’s 30-day anti-solicitation rule which states, in relevant part, that "No solicitation relating to a specific incident involving potential claims for personal injury . . . shall be disseminated before the 30th day after the date of the incident . . ."
There is no question in my mind that the website is targeted to a specific audience, but it is not so clear whether setting up a website is a form or "disseminating" solicitation materials.
A website is not something that is sent to the victims (like the letter in Shapero) or something that people receive when they don't expect it (like the newspaper page in Zauderer or a billboard that you did not expect to see when driving). The website is out there, somewhere in cyberspace where people have to actually look for it.
Obviously, if the lawyer is publicizing the website by other means - like letters or ads, etc. - the issue is easier to deal with, but assuming the lawyer simply created the website and let it sit there and people find it when they try to search for news on the blizzard or something like that, I am not so sure the question is as clear cut.
Having said that, as Eric Turkewitz explains, in New York, however, the question appears to be covered by Rule 7.3(c)(5) which states that a website maintained by the lawyer or law firm is not a form of solicitation unless the web site is designed for and directed to or targeted at a prospective client affected by an identifiable actual event or occurrence or by an identifiable prospective defendant.
UPDATE: Thanks to Eric Turkewitz again for the original story and for this update: the website in question has been turned off.
UPDATE (2/24/2012): Last September, the ABA's 20/20 Commission circulated a proposal which, among many other things, proposed to add a paragraph to the comment to Model Rule 7.3 which says, in part, that "a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches."
In the example we are discussing here, the website did not seem to be directed to the general public, but it would "only be found in response to a request for information", etc. So is it an ad or is it solicitation?
UPDATE (August 2012): The proposed amendment was adopted by the ABA and now appears as the first paragraph of the comment to Model Rule 7.3. For more on the amendments to the rules adopted in August 2012 go here, here and here.
Another case that illustrates inconsistency in sanctions
The Legal Profession blog is reporting today on a case from Pennsylvania where an attorney was suspended for four years because he was found guilty in a money laundering case. He was convicted as a result of an FBI undercover sting operation of bribes and kickbacks from unqualified loan applicants. The FBI agent approached the bank president with an idea to conceal his ownership in property because of a bitter divorce. The lawyer was sentenced to two concurrent terms of 30 months in prison.
So here we have what appears to be a felony conviction (I am not sure the court used the term felony, but given the length of the sentence it seems fair to call it that), for a crime of dishonesty and intent and yet the court does not impose disbarment. I don't get it.
The case is called Office of Disciplinary Counsel v Sinko and it is available here.
So here we have what appears to be a felony conviction (I am not sure the court used the term felony, but given the length of the sentence it seems fair to call it that), for a crime of dishonesty and intent and yet the court does not impose disbarment. I don't get it.
The case is called Office of Disciplinary Counsel v Sinko and it is available here.
Former Prosecutor Sentenced To Three Years For Accepting Drugs For Fees
Prof. Jonathan Turley's blog is reporting today that a former Florida prosecutor has received a three-year prison sentence for accepting more than 200 oxycodone pills as payment for legal services in 2010. Go here for more details.
Monday, January 23, 2012
D.C. Courts System Adopts New Code of Judicial Conduct
The Blog of the Legal Times is reporting today that "for the first time since 1995, the District of Columbia courts system has adopted new rules for judicial conduct, which encourage judges to take a more "affirmative role" in making sure pro se litigants understand legal proceedings." For more information go here. For a copy of the new rules go here.
Link to oral argument in Filarsky v Delia
You can now listen to the oral argument in Filarsky v Delia here.
Saturday, January 21, 2012
Supreme Court considers issue of qualified immunity for lawyers
Last week, the US Supreme Court heard oral arguments in a case called Filarsky v. Delia which asks the Court to decide whether a private attorney, retained by a city to assist in an administrative investigation, is entitled to assert qualified immunity from a suit brought by the person who was under investigation.
In a short article posted just prior to the oral argument, the SCOTUS blog, the best source of information for Supreme Court news, explained the background of the issue this way:
After the oral argument, the blog posted that the "oral argument in Filarsky v. Delia veered in several directions, even discussing matters well outside the question presented. By the time the dust had settled, though, a majority of the Justices seemed inclined to hold that Mr. Filarsky – a private attorney who had provided services to a city government – was entitled to the protection of qualified immunity. More difficult to discern was the Court’s preferred rationale." The full post oral argument analysis is available here.
Finally, go here for access to all the relevant documents related to the case including the briefs, the lower court's opinion and the transcript of the oral argument.
UPDATE: You can now listen to the oral argument here.
In a short article posted just prior to the oral argument, the SCOTUS blog, the best source of information for Supreme Court news, explained the background of the issue this way:
42 U.S.C. § 1983 provides that any person acting “under color of” state law who deprives another person “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” Section 1983 principally serves to regulate the conduct of government employees. But private individuals, too, can be liable when they are clothed with governmental authority.You can read the full article here.
The immunities available under § 1983, however, do not necessarily follow § 1983 liability. Private persons sued under § 1983 may not be entitled to qualified immunity — which is available to a defendant unless he violated “clearly established” legal rights, of which a reasonable person would have known — even when government employees would be immune under identical circumstances. So held the Supreme Court in Richardson v. McKnight and Wyatt v. Cole. Nonetheless, those decisions acknowledged that private individuals might be entitled to immunity under different circumstances.
The case of Filarsky v. Delia forces the Court to explore those circumstances once again.
After the oral argument, the blog posted that the "oral argument in Filarsky v. Delia veered in several directions, even discussing matters well outside the question presented. By the time the dust had settled, though, a majority of the Justices seemed inclined to hold that Mr. Filarsky – a private attorney who had provided services to a city government – was entitled to the protection of qualified immunity. More difficult to discern was the Court’s preferred rationale." The full post oral argument analysis is available here.
Finally, go here for access to all the relevant documents related to the case including the briefs, the lower court's opinion and the transcript of the oral argument.
UPDATE: You can now listen to the oral argument here.
Thursday, January 12, 2012
Does the Constitution guarantee effective assistance of counsel to aliens during removal proceedings
Thanks to my friends over at the Legal Ethics Forum, I have discovered yet another blog to add to my subscription list. This new blog (well, new for me at least) is all about issues over which the federal appeals courts are split. Presumably, this makes these issues "ripe for review."
Today, they have posted a short comment (with lots of links) on the fact that circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings. You can find it here.
Today, they have posted a short comment (with lots of links) on the fact that circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings. You can find it here.
More comments on Smith v Cain
On Tuesday I reported the Supreme Court's decision in Smith v. Cain in which the Court reversed a conviction because of the prosecutor's failure to disclose information to the defendant. As I said, though, the opinion is very short and, oddly, does not really pass judgment on the prosecutorial misconduct.
Today, Jonathan Turley has published a short comment on Justice's Thomas dissent. He also notes that the majority opinion (by Justice Roberts) "guaranteed that the case did not include language detailing the violations of the prosecutors" and suggested that the Chief Justice might have "use[d] his right to take a majority opinion to minimize the impact of a case."
As to Justice's Thomas dissent, Prof. Turley concludes that "Thomas engaged in what can only be described as judicial artistic license" in voting against reversing what he called "an outrageous conviction" which "was a travesty by any measure outside of a Tehran Sharia court."
You can read the comment here.
For more on the case go here.
And, as usual, you find the relevant documents, transcripts and links to more information in the SCOTUS blog.
Today, Jonathan Turley has published a short comment on Justice's Thomas dissent. He also notes that the majority opinion (by Justice Roberts) "guaranteed that the case did not include language detailing the violations of the prosecutors" and suggested that the Chief Justice might have "use[d] his right to take a majority opinion to minimize the impact of a case."
As to Justice's Thomas dissent, Prof. Turley concludes that "Thomas engaged in what can only be described as judicial artistic license" in voting against reversing what he called "an outrageous conviction" which "was a travesty by any measure outside of a Tehran Sharia court."
You can read the comment here.
For more on the case go here.
And, as usual, you find the relevant documents, transcripts and links to more information in the SCOTUS blog.
Yet another Paradise Lost: new movie about the West Memphis 3
I have blogged before about the movie Paradise Lost and the case of the West Memphis 3 and I just read that HBO is due to start showing the newest installment in the series. This will be the third movie on the case of the trial of three young men for the murders of three eight-year-old boys in West Memphis, a small town in eastern Arkansas. One of the kids confessed but then recanted; the others always maintained their innocence. At their trials very little evidence was brought forward to connect them to the murders but they were all convicted. They were finally released last August.
A film crew followed the case as it was being tried and eventually released an outstanding documentary called Paradise Lost: The Child Murders at Robin Hood Hills. A few years later, a "Paradise Lost 2."
Here is a link to Roger Ebert's comment on the new Paradise Lost 3.
A film crew followed the case as it was being tried and eventually released an outstanding documentary called Paradise Lost: The Child Murders at Robin Hood Hills. A few years later, a "Paradise Lost 2."
Here is a link to Roger Ebert's comment on the new Paradise Lost 3.
Tuesday, January 10, 2012
Quick analysis of Smith v Cain
I just published the news that the Supreme Court has decided Smith v Cain. And just a few minutes ago, the SCOTUS blog has a short comment on the case here. It starts,
Using brevity as a blunt instrument, the Supreme Court spent very little effort Tuesday in ordering the New Orleans district attorney’s office to provide a new trial in a murder case because prosecutors — using a tactic several times challenged before the Justices — had failed to hand over evidence that could have helped in defending a murder suspect.
Supreme Court decides Smith v Cain
One issue that divided the Court in that case was whether the evidence supported a finding that the misconduct was not an isolated incident. Evidently, in this particular case the Court thought the misconduct was enough to warrant reversal. The opinion does not really talk about misconduct as an ethical matter but simply concludes that the failure to disclose certain information to the defendant constituted a violation of the prosecutor's duty under Brady v. Maryland. As predicted by those who reported on the oral argument, the Court has decided to reverse the conviction and remand the case. The vote was 8 to 1. Justice Thomas was the only dissenter. The opinion, which is only four pages long, and the dissenting opinion are available here.
For analysis from the SCOTUS blog go here. To listen to the announcement of the decision of the court (and more) go here.
Thursday, January 5, 2012
How not to practice law: lie to cover up your mistakes
I sometimes tell my students that my kids (ages 7 and 5) could teach some aspects of the course: don't steal, don't take what's not your etc. Here is another simple lesson I have already taught that my kids: if you realize you made a mistake don't lie to try to cover it up, it will only make matters worse. Instead, admit it and try to find a way to fix it. Try to minimize the consequences if possible but ultimately accept them and learn your lesson from the experience.
Here is a new case that illustrates this. The Legal Profession blog is reporting that the Massachusetts Supreme Judicial Court has ordered a two-year suspension in a case where the attorney had committed negligent misappropriation. In response, the attorney made false representations to Bar Counsel and submitted false documents to support his explanation.
Note that the charge here was based on negligence. That is significantly different that cases where the attorney knowingly tries to steal money from clients. The attorney made a mistake; an important mistake, clearly, and a mistake that would have consequences, but there is no question that lying about it made it worse.
Here is a new case that illustrates this. The Legal Profession blog is reporting that the Massachusetts Supreme Judicial Court has ordered a two-year suspension in a case where the attorney had committed negligent misappropriation. In response, the attorney made false representations to Bar Counsel and submitted false documents to support his explanation.
Note that the charge here was based on negligence. That is significantly different that cases where the attorney knowingly tries to steal money from clients. The attorney made a mistake; an important mistake, clearly, and a mistake that would have consequences, but there is no question that lying about it made it worse.
DC ethics opinion on referral fees for sending clients to non-lawyers
The D.C. bar's ethics committee has issued a new opinion which concludes that District of Columbia lawyers may accept referral fees for sending clients to non-lawyer service providers provided that the client gives informed consent and other conditions are satisfied. The District of Columbia Bar Legal Ethics Comm., Op. 361, 11/11 is available here.
New summary of the ABA Commission 20/20 work
The ABA's Commission 20/20 continues to work and here is its most recent summary of the Commission's actions.
Friday, December 30, 2011
How not to (start the) practice (of) law: cheat on the bar exam
The title says it all. If you want to be admitted to the practice of law, it is really not a good idea to try to cheat during the bar exam. ..just sayin'...
The Legal Profession blog is reporting today on a case in which the State Board of Law Examiners found that the petitioner was trying to cheat during the bar exam. The Appellate Division of New York's Supreme Court
affirmed the decision nullifying the results of the exam. Go here for a copy of the court's order.
The Legal Profession blog is reporting today on a case in which the State Board of Law Examiners found that the petitioner was trying to cheat during the bar exam. The Appellate Division of New York's Supreme Court
affirmed the decision nullifying the results of the exam. Go here for a copy of the court's order.
Wednesday, December 28, 2011
More on the controversy over Stephen Glass' request for admission to the bar - UPDATED (Dec. 27)
A few days ago I wrote about the controversy over the request for admission to the bar by Stephen Glass, a former journalist who was exposed for having falsified many of the stories he wrote for important national magazines over the years - including some he wrote while attending law school. See my original comment on the case here. Reuters has a new story on the case here.
UPDATE 12-10-11: Stephen Diamond has posted a comment called "Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment," here.
UPDATE #2: 12/27/11: (by the Legal Ethics Forum): An op-ed published by the New York Times (here) argues in favor of admission to the bar. The Washington Post has more on the story here. Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case. The article was later turned into a film of the same name.
UPDATE 12-10-11: Stephen Diamond has posted a comment called "Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment," here.
UPDATE #2: 12/27/11: (by the Legal Ethics Forum): An op-ed published by the New York Times (here) argues in favor of admission to the bar. The Washington Post has more on the story here. Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case. The article was later turned into a film of the same name.
Top stories of the year
As usual, around this time of the year we start seeing "top ten lists" for everything. Go here for the Top Legal Ethics Stories of the Year list as compiled by the Legal Ethics Forum.
How not to practice law: host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user
I am constantly amazed at how people post stuff on the internet forgetting that others have access to what they post... I like to tell my students jokingly (although it is not entirely a joke) that "facebook makes you dumb." Here is another example: In a recent case the South Carolina Supreme Court disbarred an attorney who did not reply to a number of alleged ethics violations, among them a charge that he maintained a webpage with the name of his law firm on MySpace.com that contained profanity and nudity along statements that suggested he had been using drugs during the week prior to posting the comment.
Listen people: if you post something on the internet, others will read it. It can and will be used against you.
Listen people: if you post something on the internet, others will read it. It can and will be used against you.
Friday, December 16, 2011
The New Jersey approach to sanctions
As Mike Frisch of the Legal Profession Blog recently stated, "there was a time when New Jersey had the reputation for being tough on attorney misconduct. That time has obviously long since passed." His comment was prompted by a couple of new cases that display what he called "the forgiving nature of attorney discipline in New Jersey."
In the first case, an attorney had been suspended for three months but failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension but the Disciplinary Review Board concluded that no further suspension was appropriate.
In the second case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation. As a result, while claiming that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated," the imposed sanction was merely a reprimand.
In the first case, an attorney had been suspended for three months but failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension but the Disciplinary Review Board concluded that no further suspension was appropriate.
In the second case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation. As a result, while claiming that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated," the imposed sanction was merely a reprimand.
Permanent ban from the SEC as a sanction
Breaking from tradition, the Securities and Exchange Commission sought sanctions in a recent case for ethics violations that were not tethered to violations of securities law. In fact, the Commission imposed a lifetime ban on a commercial litigator whom the agency accused of violating attorney ethics rules. Today, the BLT is reporting that the Court of Appeals for the DC Circuit unanimously upheld the commission's sanction. Go here for more on the story. Go here for the decision of the court.
Proper sanctions? You be the judge
Here is a story from the Pennsylvania Disciplinary Board (via the Legal Profession blog).
An attorney was retained to pursue claims for injuries sustained by a passenger in a plane that collided with a truck on the runway. In the suit, he asserted that the client's injuries were solely caused by the accident. The client so testified at her deposition. The client also testified that she had had no contact with the attorney prior to the plane accident.
However, this was false. The client had been in a car accident two months before and had retained the attorney to pursue the claim.
The attorney failed to correct her false deposition testimony, contending that he did not "contemporaneously realize" that the testimony was false.
I am sorry, what? So, at the time of the deposition the attorney had forgotten that the client was his client in another on going case? Or was it that the attorney did not realize the client lied when she said she had not contacted the attorney? Since he must have known she had contacted him, I am not sure it is difficult to see the statement was incorrect.
What sanctions would you impose? The Board imposed a public censure. The opinion is available here.
An attorney was retained to pursue claims for injuries sustained by a passenger in a plane that collided with a truck on the runway. In the suit, he asserted that the client's injuries were solely caused by the accident. The client so testified at her deposition. The client also testified that she had had no contact with the attorney prior to the plane accident.
However, this was false. The client had been in a car accident two months before and had retained the attorney to pursue the claim.
The attorney failed to correct her false deposition testimony, contending that he did not "contemporaneously realize" that the testimony was false.
I am sorry, what? So, at the time of the deposition the attorney had forgotten that the client was his client in another on going case? Or was it that the attorney did not realize the client lied when she said she had not contacted the attorney? Since he must have known she had contacted him, I am not sure it is difficult to see the statement was incorrect.
What sanctions would you impose? The Board imposed a public censure. The opinion is available here.
Wednesday, December 14, 2011
Malpractice on 34th Street
Abnormal Use has an interesting take on the movie Miracle on 34th Street, a Christmas classic. As you may recall, the movie's climax is a trial scene. Abnormal Use reviews the film and discusses how inaccurate the courtroom scenes are here.
Conviction reversed because of improper argument by prosecutor
A conviction of a criminal defendant for the murder of his wife was reversed by the Mississippi Supreme Court because, as part of the closing argument, the prosecutor repeatedly asked the jurors how they would feel with a loaded shotgun pointed at their face.
Thanks to the Legal Profession blog for the link.
Thanks to the Legal Profession blog for the link.
Monday, December 12, 2011
Spectacular incompetence
I once used the title "incomparable incompetence" to describe the conduct of attorneys and the judge in a particular case (see here). Then a similar case came along and I again questioned the competence of those involved (here). Now a judge has beaten me to the punch, calling the conduct of a criminal defense lawyer and the prosecutor in the case "spectacularly incompetent" according to the Houston Chronicle (here).
In this new case, the defendant was convicted and sentenced to life in prison for armed robbery. He insisted he was innocent, but could not remember exactly where he was on the day of the robbery. The fact is he had a pretty good alibi, he just did not remember it. He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.
Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges. In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."
The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."
Interestingly, it seems the attorney's conduct did not result in injuries to the client, though. True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges. In fact, he is still in custody for this reason.
In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.
In terms of discipline, should we impose sanctions for this conduct?
In this new case, the defendant was convicted and sentenced to life in prison for armed robbery. He insisted he was innocent, but could not remember exactly where he was on the day of the robbery. The fact is he had a pretty good alibi, he just did not remember it. He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.
Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges. In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."
The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."
Interestingly, it seems the attorney's conduct did not result in injuries to the client, though. True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges. In fact, he is still in custody for this reason.
In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.
In terms of discipline, should we impose sanctions for this conduct?
Saturday, December 10, 2011
Follow up on the story about the prosecutors in the Ted Stevens case
About two weeks ago I commented on the report by the special prosecutor looking into the misconduct by the prosecutors in the Ted Stevens case. See here. Just a few hours ago, I commented on an op-ed piece on the need for more accountability for prosecutorial misconduct (here). Here is a story that combines both of those themes.
Today there is a new related story about the Ted Stevens case. But before I tell you that story, I have to give you a little background. Back in February 2009, U.S. District Judge Emmet Sullivan declared several prosecutors in contempt for violating a court order to turn over documents to Stevens’ defense team. However, the judge did not impose sanctions, saying he would address sanctions at a later date. The prosecutors disclosed the information hours after they were held in contempt, but the judge did not lift the contempt finding until October 2010, more than a year later, when he declined to impose sanctions against the prosecutors.
The prosecutors, challenged the contempt order arguing that it was a criminal contempt order, which they apparently argued marred their professional careers and could impede their ability to practice in federal trial courts around the country. They wanted the contempt order reversed because, according to their argument, it was issued without procedural protections required by the rules of criminal procedure. Such a finding would have eliminated the "conviction" but would not have necessarily negated the nature of the conduct that resulted in the imposition of contempt.
The challenge to the contempt order has now been decided by the U.S. Court of Appeals for the D.C. Circuit which held that the contempt order was civil, not criminal. In doing so, thus, the court found the lower court did not err in holding the prosecutors in contempt, but at the same time apparently cleared them of the possible interpretation that they engaged in misconduct. The decision is available here.
In the end, however, this whole thing is becoming a comedy of errors - and when I say "comedy" I mean exactly the opposite. First of all, there is the conduct of at least some of the prosecutors to begin with. Second, there's the judge's handling of the order. He should have imposed sanctions immediately. There was no reason to wait more than a year to decide whether to impose sanctions or to wait more than a year to not impose sanctions.
Third, there is the finding of the court now saying the order was really civil in nature. What's the problem with that? It has the effect of saying that the prosecutors' conduct was not worthy of criminal contempt, letting them off the hook.
In the end, by having the court reject their argument, the prosecutors got a better result than the one they apparently had asked for. The fact is that, at least so far, nothing has marred the careers of any of the prosecutors involved in the case and there is really no reason to expect that anything will. For more on that topic go here.
For more on this story go to the Blog of the Legal Times and the Wall Street Journal Law Blog.
Today there is a new related story about the Ted Stevens case. But before I tell you that story, I have to give you a little background. Back in February 2009, U.S. District Judge Emmet Sullivan declared several prosecutors in contempt for violating a court order to turn over documents to Stevens’ defense team. However, the judge did not impose sanctions, saying he would address sanctions at a later date. The prosecutors disclosed the information hours after they were held in contempt, but the judge did not lift the contempt finding until October 2010, more than a year later, when he declined to impose sanctions against the prosecutors.
The prosecutors, challenged the contempt order arguing that it was a criminal contempt order, which they apparently argued marred their professional careers and could impede their ability to practice in federal trial courts around the country. They wanted the contempt order reversed because, according to their argument, it was issued without procedural protections required by the rules of criminal procedure. Such a finding would have eliminated the "conviction" but would not have necessarily negated the nature of the conduct that resulted in the imposition of contempt.
The challenge to the contempt order has now been decided by the U.S. Court of Appeals for the D.C. Circuit which held that the contempt order was civil, not criminal. In doing so, thus, the court found the lower court did not err in holding the prosecutors in contempt, but at the same time apparently cleared them of the possible interpretation that they engaged in misconduct. The decision is available here.
In the end, however, this whole thing is becoming a comedy of errors - and when I say "comedy" I mean exactly the opposite. First of all, there is the conduct of at least some of the prosecutors to begin with. Second, there's the judge's handling of the order. He should have imposed sanctions immediately. There was no reason to wait more than a year to decide whether to impose sanctions or to wait more than a year to not impose sanctions.
Third, there is the finding of the court now saying the order was really civil in nature. What's the problem with that? It has the effect of saying that the prosecutors' conduct was not worthy of criminal contempt, letting them off the hook.
In the end, by having the court reject their argument, the prosecutors got a better result than the one they apparently had asked for. The fact is that, at least so far, nothing has marred the careers of any of the prosecutors involved in the case and there is really no reason to expect that anything will. For more on that topic go here.
For more on this story go to the Blog of the Legal Times and the Wall Street Journal Law Blog.
Friday, December 9, 2011
Op-ed asks for prosecutorial accountability
Last month I posted a note (here) about a new short article in the Yale Law Journal Online on prosecutorial accountability. The article is called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct and it is available here.
Today, one of the authors of the article published an Op-ed piece in the National Law Journal calling for more accountability for prosecutors. It is available here. It states that "research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs."
I have been saying this for a long time, of course, so I am glad the problem is finally getting more attention. Long time readers of this blog might remember that I called 2009 the year of prosecutorial misconduct because there were so many high profile cases reported. Also, if you look at the number of posts by topic (on the right side panel) of this blog you will see that the "prosecutors" category has one of the highest totals. Obviously, not all of the cases reported there involve intentional misconduct, but many do and more often than not my comments end with me complaining that courts and disciplinary agencies do not do enough to discourage misconduct among prosecutors. For the most recent example, go here.
Today, one of the authors of the article published an Op-ed piece in the National Law Journal calling for more accountability for prosecutors. It is available here. It states that "research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs."
I have been saying this for a long time, of course, so I am glad the problem is finally getting more attention. Long time readers of this blog might remember that I called 2009 the year of prosecutorial misconduct because there were so many high profile cases reported. Also, if you look at the number of posts by topic (on the right side panel) of this blog you will see that the "prosecutors" category has one of the highest totals. Obviously, not all of the cases reported there involve intentional misconduct, but many do and more often than not my comments end with me complaining that courts and disciplinary agencies do not do enough to discourage misconduct among prosecutors. For the most recent example, go here.
Wednesday, December 7, 2011
Illinois Disciplinary board granted authority to investigate, prosecute unauthorized practice of law
Illinois Lawyer Now is reporting that, earlier this week, the Illinois Supreme Court granted the Attorney Registration and Disciplinary Commission (ARDC) the authority to investigate and prosecute the unauthorized practice of law.
I have to say I found this surprising in the sense that I thought the ARDC already had that authority. The ARDC is the disciplinary agency in the state and given that unauthorized practice of law is an ethical violation, you would think that it has the authority to deal with such cases. Well, apparently, it didn't, but now it does.
But maybe I should not be surprised. A couple of years ago, I posted a comment about a case that interpreted the notion of illegal practice of law in Illinois which I found odd. I promised myself I would do some research on the question, but never got around to it. Maybe now I will....
That case from two years ago was People v Harris, in which the Court of Appeals affirmed a conviction of a law school graduate who was not admitted to practice in Illinois for "false personation of an attorney."
Here is what I wrote back then:
The applicable statute in the case reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”
The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."
This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.
Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?
After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.
The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.
Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.
The opinion is available here.
I have to say I found this surprising in the sense that I thought the ARDC already had that authority. The ARDC is the disciplinary agency in the state and given that unauthorized practice of law is an ethical violation, you would think that it has the authority to deal with such cases. Well, apparently, it didn't, but now it does.
But maybe I should not be surprised. A couple of years ago, I posted a comment about a case that interpreted the notion of illegal practice of law in Illinois which I found odd. I promised myself I would do some research on the question, but never got around to it. Maybe now I will....
That case from two years ago was People v Harris, in which the Court of Appeals affirmed a conviction of a law school graduate who was not admitted to practice in Illinois for "false personation of an attorney."
Here is what I wrote back then:
The applicable statute in the case reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”
The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."
This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.
Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?
After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.
The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.
Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.
The opinion is available here.
ABA Commission on Ethics 20/20 Releases Rule 5.4 Draft
The ABA Commission on Ethics 20/20 has released a discussion draft of a possible proposal to amend Model Rule 5.4, which, if adopted, would allow for very limited forms of nonlawyer ownership in law firms. The Commission is seeking feedback in order to determine whether it should make such a proposal. The proposal can be found here.
The Commission encourages responses by late January 2011, so that they can be discussed at the Commission's February 2-3, 2012 meeting, and further asks that those requiring additional time submit comments by February 29, 2012. Comments should be submitted to Senior Research Paralegal, Natalia Vera, natalia.vera@americanbar.org.
For more on the story go to the Legal Ethics Forum and the Wall Street Journal Law Blog.
Some time ago, I posted a note about a bill in North Carolina on the same issue with a link to a comment that concluded this is a lousy idea (here).
The Commission encourages responses by late January 2011, so that they can be discussed at the Commission's February 2-3, 2012 meeting, and further asks that those requiring additional time submit comments by February 29, 2012. Comments should be submitted to Senior Research Paralegal, Natalia Vera, natalia.vera@americanbar.org.
For more on the story go to the Legal Ethics Forum and the Wall Street Journal Law Blog.
Some time ago, I posted a note about a bill in North Carolina on the same issue with a link to a comment that concluded this is a lousy idea (here).
Monday, December 5, 2011
Not one of the top blogs
Once again, my blogs did NOT make it into the list of the "best" law blogs. What's the matter with you people?! Don't you like me? C'mon... I am getting discouraged here!!! I guess I need to get organized and start a campaign much sooner next year... Is it that my blogs don't have "catchy" titles? Then help me come up with a better one...
All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam.... Decide for yourself after you read his post here.
Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.
All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam.... Decide for yourself after you read his post here.
Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.
Thursday, December 1, 2011
Proper role of the judge or abuse of discretion?
I have commented in the past on the controversy related to whether judges abuse their discretion when they impose unusual (some would say creative) forms of punishment. For example, recall the stories on judges ordering defendants to go to church, to sing a song, or to suffer public humiliation.
Now comes news that a judge in Florida told a defendant she would reduce the defendant's sentence one day for every pound of weight he lost. The defendant reportedly weighed 345 pounds at the time. He lost 25 pounds in 20 days and received early release. Professor Jonathan Turley, who criticized judicial use of humiliation as abuse of discretion in the past (here), has also commented on this new case. Go here for his comments.
Now comes news that a judge in Florida told a defendant she would reduce the defendant's sentence one day for every pound of weight he lost. The defendant reportedly weighed 345 pounds at the time. He lost 25 pounds in 20 days and received early release. Professor Jonathan Turley, who criticized judicial use of humiliation as abuse of discretion in the past (here), has also commented on this new case. Go here for his comments.
California Supreme Court will hear disgraced journalist’s moral character case
Stephen Glass was once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital, producing knockout articles for magazines ranging from The New Republic to Rolling Stone.” It was later discovered, however, that many of his articles were completely fabricated and he was exposed as a fraud.
Glass wrote some of the false articles while attending Georgetown law school. He graduated and passed the bar exams in New York and California. However, he has not been admitted to practice in either state. According to the California Bar Journal, he withdrew his application in New York after learning his admission would likely be denied, and his application in California was, in fact, denied by the Committee of Bar Examiners (CBE).
This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.
This is the first time in 11 years that the California Supreme Court has agreed to hear a case of a candidate denied admission to the State Bar because of moral character issues.
The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation."
This is an interesting case, and a close call. On the one hand, there should be no doubt that the conduct would have been sufficient to get Glass disciplined if he had engaged in it while he was a lawyer. And, given the fact that he engaged in the conduct while he was a law student, I think there is plenty of support for the argument that Glass lacks the character expected of a member of the profession. For a similar case, see In re Lamberis, 443 N.E.2d 549 (Ill. 1982), a case in which the lawyer was disciplined for engaging in plagiarism. One interesting aspect of that case is the wide range of sanctions considered by the those evaluating the conduct.
On the other hand, Glass has argued that the conduct is now in his past, that he has learned his lesson and that he has been rehabilitated. And this is the key. What kind of evidence of "rehabilitation" should be require to defeat the notion that past misconduct can be used to predict future conduct?
That is a tough question indeed. Do you believe that people "can change"? How much do you trust people when they say "I won't do it again" - whatever that "it" is?
According to reports, Glass apparently has the support of some of the editors of the publications he lied to in the past, but the CBE contends that Glass' actions do not support his allegations arguing that Glass made misrepresentations to the New York bar when trying to win admission there.
I find this last allegation very troubling. How can we really trust a candidate who says we should be confident we can trust him if it is true he has lied in an attempt to get admitted? If I were voting on this case, and the CBE proved the allegation that the candidate made misrepresentations in the bar application in NY, I would vote against admission.
No date has been set for oral argument at the Supreme Court, so stay tuned.
Glass wrote some of the false articles while attending Georgetown law school. He graduated and passed the bar exams in New York and California. However, he has not been admitted to practice in either state. According to the California Bar Journal, he withdrew his application in New York after learning his admission would likely be denied, and his application in California was, in fact, denied by the Committee of Bar Examiners (CBE).
This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.
This is the first time in 11 years that the California Supreme Court has agreed to hear a case of a candidate denied admission to the State Bar because of moral character issues.
The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation."
This is an interesting case, and a close call. On the one hand, there should be no doubt that the conduct would have been sufficient to get Glass disciplined if he had engaged in it while he was a lawyer. And, given the fact that he engaged in the conduct while he was a law student, I think there is plenty of support for the argument that Glass lacks the character expected of a member of the profession. For a similar case, see In re Lamberis, 443 N.E.2d 549 (Ill. 1982), a case in which the lawyer was disciplined for engaging in plagiarism. One interesting aspect of that case is the wide range of sanctions considered by the those evaluating the conduct.
On the other hand, Glass has argued that the conduct is now in his past, that he has learned his lesson and that he has been rehabilitated. And this is the key. What kind of evidence of "rehabilitation" should be require to defeat the notion that past misconduct can be used to predict future conduct?
That is a tough question indeed. Do you believe that people "can change"? How much do you trust people when they say "I won't do it again" - whatever that "it" is?
According to reports, Glass apparently has the support of some of the editors of the publications he lied to in the past, but the CBE contends that Glass' actions do not support his allegations arguing that Glass made misrepresentations to the New York bar when trying to win admission there.
I find this last allegation very troubling. How can we really trust a candidate who says we should be confident we can trust him if it is true he has lied in an attempt to get admitted? If I were voting on this case, and the CBE proved the allegation that the candidate made misrepresentations in the bar application in NY, I would vote against admission.
No date has been set for oral argument at the Supreme Court, so stay tuned.
Tuesday, November 29, 2011
Proper sanction for refusing to reimburse unearned fee?
The Legal Profession blog is reporting today on a case with an interesting set of facts: An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case. The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.
Based on these facts, the Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance." The court's order is available here.
I have no problem with the court's decision. The conduct was unethical and the refund was provided too late. My question is whether the sanction was adequate. I have often posted comments about this. What makes the conduct worth a one month suspension, as opposed to a two month suspension, for example?
I think a one month suspension is too lenient in this case, but I am not sure what would be appropriate. What do you think? I guess the way to find an answer is to research the law of the state to see if there are other similar cases.
Based on these facts, the Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance." The court's order is available here.
I have no problem with the court's decision. The conduct was unethical and the refund was provided too late. My question is whether the sanction was adequate. I have often posted comments about this. What makes the conduct worth a one month suspension, as opposed to a two month suspension, for example?
I think a one month suspension is too lenient in this case, but I am not sure what would be appropriate. What do you think? I guess the way to find an answer is to research the law of the state to see if there are other similar cases.
Monday, November 28, 2011
I thought prosecutors have an obligation to behave ethically... silly me!
A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence.
I am sorry, but this is so absurd it is painful. Granted, there is a difference between contempt and disciplinary action, but this "reasoning" is one of the dumbest things I have heard all year. To say that clearly unethical conduct is not worthy of punishment because the court did not specifically tell the lawyers they needed to be ethical makes a mockery of the whole notion of professional responsibility!
And people wonder why there is so much prosecutorial misconduct. Here is the answer: because there is no accountability. Judges need to understand that to minimize prosecutorial misconduct they need to start imposing liability (whether civil, criminal or disciplinary) for unethical conduct.
For more on this story see The New York Times, Jonathan Turley's blog, the Wall Street Journal's law blog and the Blog of the Legal Times.
I am sorry, but this is so absurd it is painful. Granted, there is a difference between contempt and disciplinary action, but this "reasoning" is one of the dumbest things I have heard all year. To say that clearly unethical conduct is not worthy of punishment because the court did not specifically tell the lawyers they needed to be ethical makes a mockery of the whole notion of professional responsibility!
And people wonder why there is so much prosecutorial misconduct. Here is the answer: because there is no accountability. Judges need to understand that to minimize prosecutorial misconduct they need to start imposing liability (whether civil, criminal or disciplinary) for unethical conduct.
For more on this story see The New York Times, Jonathan Turley's blog, the Wall Street Journal's law blog and the Blog of the Legal Times.
Legal Zoom Sues North Carolina Bar - UPDATED
Last August I reported that Legal Zoom.com settled a class action filed in Missouri claiming that it was illegally practicing law in the state of Missouri. Go here for more details.
Legal Zoom is now back in the news. The Wall Street Journal law blog is reporting that Legal Zoom has filed a lawsuit in North Carolina claiming the State Bar has accused Legal Zoom improperly of engaging in the unauthorized practice of law. The suit asks the court to declare that Legal Zoom is authorized to sell its self-help legal service on the Internet. Go here for more information.
UPDATE: 11/28/11: The Lincoln Tribune recently published a story on this case here.
Thanks to the Legal Ethics Forum for this link.
Legal Zoom is now back in the news. The Wall Street Journal law blog is reporting that Legal Zoom has filed a lawsuit in North Carolina claiming the State Bar has accused Legal Zoom improperly of engaging in the unauthorized practice of law. The suit asks the court to declare that Legal Zoom is authorized to sell its self-help legal service on the Internet. Go here for more information.
UPDATE: 11/28/11: The Lincoln Tribune recently published a story on this case here.
Thanks to the Legal Ethics Forum for this link.
Sunday, November 27, 2011
How not to practice law update
Here are the links to the "how not to practice law list" so far. As you can see, these are examples of incredible but true stories of conduct that is so basic you'd think anyone would know that what they are doing is improper. Nothing complicated here. In many of the cases, you can say the conduct is simply just plain stupid... The list would be funny, if it weren't for the fact that it is a serious problem that there are so many lawyers out there getting in trouble for these kinds of things.... Each item is a link to its own post/story.
have sex with client, then charge her for your services
help your boyfriend escape from prison, wait a couple of hours, then post a photo of the two of you on Facebook
on appeal, prepare a lousy brief that does not support your arguments
beat up your client with a baseball bat
steal money from clients, then "in your defense" argue you needed the money
bring your recreational drugs to court, then drop them in front of police officer
post photos of your client's undies on Facebook and make fun of your client and his family in the process
do everything wrong when leaving your firm
video: how not to conduct a hearing (follow up on that story, here)
if you are a judge, preside over the bond hearing of the person accused of a crime against you
if you are a judge, let your clerks decide your cases while you are on vacation
misrepresent your assets in a bankruptcy application (even though you are wearing them in public) (or hide your assets in a bankruptcy case)
don't pay taxes (particularly if you are a former IRS attorney and a tax lawyer)
don't take depositions seriously
if you are a judge, try to establish inappropriate personal relationship with attorney who appears before you
stop paying child support
use your client's money to pay gambling debts
pull a gun on a process server when he is trying to hand you some papers
lie during the disciplinary process to cover up your mistakes (more recently, here)
try to cheat on the bar exam
host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user
claim you forgot your client was your client in order to avoid correcting your client's perjured testimony during discovery
allow your client to be convicted even though he was in prison at the time of the crime
double bill the court
prepare a will for the client in which the client names you or your wife as the beneficiary
write incomprehensible complaints and briefs
slap the witness in the face during a deposition
bring drugs with you when you visit clients in prison
use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"
represent buyer and seller in a transaction, then represent one of them against the other after transaction is done
show the jury the evidence the judge had excluded
have your spouse lend money to client
don't pay attention to the details
inflate your bills
start to practice law before you are admitted to the bar
abuse your power as a prosecutor by offering leniency in exchange for sex with defendants or their mothers
don't pay your student loans
offer to help law students cheat
claim that everything is confidential
charge a fee for doing nothing
try to help your client by breaking the law
advertise you have "associates" when, in fact, you don't
tell the jury you think your client is guilty
pretend to be a doctor (more recently here)
try to influence the judge
show up drunk, (same problem, more recently here)
have sex with clients while visiting them in prison (a similar, more recent case here)
sell the defendant's property
be a pimp
charge $3,500 an hour AND be rude to the judge
plagiarize
break the law and obstruct justice
tell your divorce client's wife you want to go out with her
have sex with client's wife
continue to practice during your suspension (same problem, more recently here)
make sure you tell the jury the information the judge had excluded
pay your employees "under the table"
ask client to pay fees with drugs (same, more recent case here)
insult the judge (preferably in writing)
write a bad brief
don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)
if you make a mistake, lie to cover it up
pay your bar dues with a check from your client's account
convince clients to give you title of their house so they avoid foreclosure, then get them evicted
let the client dictate (bad) strategy
ask client to pay fees with sex
park in the handicapped parking spot
lie
get married when you are already married (same problem, more recently here and here)
show up to court drunk
have affair with married woman, then agree to represent her husband in divorce
when interviewing an applicant for a secretary position tell her that having sex with you is part of the job
try to recover expenses from your client after you agreed not to do it
provide the wrong citation to key cases so the judge goes nuts trying to find them
try to blackmail your opponents to get what you want
lie to the judge
take more work than you can handle
lie to the disciplinary committee
forge the judge's signature
ask for stolen property as payment for your services
rob a bank
be rude to the judge's clerk
don't proofread anything before you file it in court
have sex with client, then charge her for your services
help your boyfriend escape from prison, wait a couple of hours, then post a photo of the two of you on Facebook
on appeal, prepare a lousy brief that does not support your arguments
beat up your client with a baseball bat
steal money from clients, then "in your defense" argue you needed the money
bring your recreational drugs to court, then drop them in front of police officer
post photos of your client's undies on Facebook and make fun of your client and his family in the process
do everything wrong when leaving your firm
video: how not to conduct a hearing (follow up on that story, here)
if you are a judge, preside over the bond hearing of the person accused of a crime against you
if you are a judge, let your clerks decide your cases while you are on vacation
misrepresent your assets in a bankruptcy application (even though you are wearing them in public) (or hide your assets in a bankruptcy case)
don't pay taxes (particularly if you are a former IRS attorney and a tax lawyer)
don't take depositions seriously
if you are a judge, try to establish inappropriate personal relationship with attorney who appears before you
stop paying child support
use your client's money to pay gambling debts
pull a gun on a process server when he is trying to hand you some papers
lie during the disciplinary process to cover up your mistakes (more recently, here)
try to cheat on the bar exam
host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user
claim you forgot your client was your client in order to avoid correcting your client's perjured testimony during discovery
allow your client to be convicted even though he was in prison at the time of the crime
double bill the court
prepare a will for the client in which the client names you or your wife as the beneficiary
write incomprehensible complaints and briefs
slap the witness in the face during a deposition
bring drugs with you when you visit clients in prison
use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"
represent buyer and seller in a transaction, then represent one of them against the other after transaction is done
show the jury the evidence the judge had excluded
have your spouse lend money to client
don't pay attention to the details
inflate your bills
start to practice law before you are admitted to the bar
abuse your power as a prosecutor by offering leniency in exchange for sex with defendants or their mothers
don't pay your student loans
offer to help law students cheat
claim that everything is confidential
charge a fee for doing nothing
try to help your client by breaking the law
advertise you have "associates" when, in fact, you don't
tell the jury you think your client is guilty
pretend to be a doctor (more recently here)
try to influence the judge
show up drunk, (same problem, more recently here)
have sex with clients while visiting them in prison (a similar, more recent case here)
sell the defendant's property
be a pimp
charge $3,500 an hour AND be rude to the judge
plagiarize
break the law and obstruct justice
tell your divorce client's wife you want to go out with her
have sex with client's wife
continue to practice during your suspension (same problem, more recently here)
make sure you tell the jury the information the judge had excluded
pay your employees "under the table"
ask client to pay fees with drugs (same, more recent case here)
insult the judge (preferably in writing)
write a bad brief
don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)
if you make a mistake, lie to cover it up
pay your bar dues with a check from your client's account
convince clients to give you title of their house so they avoid foreclosure, then get them evicted
let the client dictate (bad) strategy
ask client to pay fees with sex
park in the handicapped parking spot
lie
get married when you are already married (same problem, more recently here and here)
show up to court drunk
have affair with married woman, then agree to represent her husband in divorce
when interviewing an applicant for a secretary position tell her that having sex with you is part of the job
try to recover expenses from your client after you agreed not to do it
provide the wrong citation to key cases so the judge goes nuts trying to find them
try to blackmail your opponents to get what you want
lie to the judge
take more work than you can handle
lie to the disciplinary committee
forge the judge's signature
ask for stolen property as payment for your services
rob a bank
be rude to the judge's clerk
don't proofread anything before you file it in court
Thursday, November 17, 2011
Solicitation in the Penn State sex scandal
Eric Turkewitz comments (and he "names names") on attempts to find and solicit sex abuse victims here.
Wednesday, November 16, 2011
Be careful what you wish for
Here is an interesting recent case out of the Illinois Appellate Court. In this case, a criminal defendant appealed his conviction - which was the result of a negotiated plea - arguing that he agreed to the deal based on his lawyer's bad legal advice. According to the agreement, he received a sentence of 27 years in prison. Only problem is that, because of the circumstances of the case, the mandatory minimum sentence should have been 25 years more. So the court of appeals grants his request to set aside the conviction and remands the case to allow the defendant to withdraw the plea "and proceed to trial if he so chooses" only now he is facing, at a minimum, about twice the sentence. So he got what he wanted but now he is much worse off.
So what happened here? I don't know why or how the negotiated plea was obtained. Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law. And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law? Or, again, was it a case where the lawyer simply did not know the law? And then there's defendant's counsel on appeal. Why would he recommend to appeal a sentence when the result could ONLY be worse for the client? Did he inform the client of this and let the client decide or did the lawyer not realize it? The case is called People v McRae and it is available here.
Interestingly, this is not the first time I've heard of something like this. Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.
So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.
The rest of the decision in McRae is also interesting. The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail." In the letter, the defendant essentially confessed to committing the crime. Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal. On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it. Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.
So what happened here? I don't know why or how the negotiated plea was obtained. Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law. And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law? Or, again, was it a case where the lawyer simply did not know the law? And then there's defendant's counsel on appeal. Why would he recommend to appeal a sentence when the result could ONLY be worse for the client? Did he inform the client of this and let the client decide or did the lawyer not realize it? The case is called People v McRae and it is available here.
Interestingly, this is not the first time I've heard of something like this. Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.
So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.
The rest of the decision in McRae is also interesting. The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail." In the letter, the defendant essentially confessed to committing the crime. Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal. On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it. Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.
Prosecutor's book contract results in reversal of conviction and more
Model Rule 1.8(d) states 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." Most jurisdictions probably have a similar rule, the purpose of which, obviously, is to make sure an attorney is not distracted by his or her personal interest in making money off the future book or movie. It is a pretty simple rule and I don't remember having seen too many cases about it.
In one of those rare cases, the Legal Profession blog is reporting today that the Indiana Court of Appeals has reversed a murder conviction in a case where the prosecutor had entered into a (now cancelled) literary contract for a book. The case is Camm v Indiana and it is available here. For more on the case, go to the Legal Profession blog here.
In one of those rare cases, the Legal Profession blog is reporting today that the Indiana Court of Appeals has reversed a murder conviction in a case where the prosecutor had entered into a (now cancelled) literary contract for a book. The case is Camm v Indiana and it is available here. For more on the case, go to the Legal Profession blog here.
LSC's funding to be cut, probably by 14%
The Chicago Daily Law Bulletin is reporting that the Legal Services Corp. (LSC), which awards grants to legal aid providers throughout the nation, could see its funding slashed by nearly 14 percent in fiscal year 2012. There are three legal aid providers in Illinois that rely heavily on federal funding to provide legal assistance to those in need: Land of Lincoln Legal Assistance Foundation, Legal Assistance Foundation of Metropolitan Chicago and Prairie State Legal Services Inc. The cuts in funding will likely result in cuts in staff and fewer services at a time when there are more poor people and more need for those services.
Please consider giving generously to agencies providing legal aid when choosing charities to contribute to this coming holiday season (or at any other time in the future).
UPDATE: Public Citizen has more information here, including a link to the 2012 budget deal.
Please consider giving generously to agencies providing legal aid when choosing charities to contribute to this coming holiday season (or at any other time in the future).
UPDATE: Public Citizen has more information here, including a link to the 2012 budget deal.
Monday, November 14, 2011
Supreme Court to hear case on possible attorney immunity
The Supreme Court has announced its schedule for oral arguments during the month of January and it includes a case on the law of lawyering and torts. The case is called Filarsky v. Delia is about there private lawyers should have the benefit of immunity for the consequences of their conduct while working temporarily for the government. I have mentioned the case before here. For more information and links to all the relevant documents, including the lower court's opinion and the parties' briefs go here.
Yet another case of possible prosecutorial misconduct for not disclosing exculpatory evidence; this one from Texas
I have been following the case before the Supreme Court on prosecutorial misconduct for failing to disclose exculpatory evidence (see here, here and here), and I have commented on the relationship between that case and last year's case Connick v Thompson in which the exonerated man sued the DAs office seeking compensation. (for more on that one type Connick in the "search this blog" box on the right under my photo which will take you a a lot of links on the case.)
Today, in yet another case of a defendant getting exonerated after spending a long time in prison (two decades in this case), the Legal Ethics Forum is reporting that the prosecution is going to have to answer some very hard questions about the prosecutor's fulfillment of his duty to disclose. For more go here.
Today, in yet another case of a defendant getting exonerated after spending a long time in prison (two decades in this case), the Legal Ethics Forum is reporting that the prosecution is going to have to answer some very hard questions about the prosecutor's fulfillment of his duty to disclose. For more go here.
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