60 minutes segment on prosecutorial misconduct

Last night the TV show 60 minutes aired a segement on prosecutorial misconduct in a case in Texas in which the defendant was recently exonerated (after 25 years in prison) by DNA evidence.  It has been alleged that the prosecutor in the case knowingly withheld evidence it was legally obligated to disclose to the defendant's lawyers.  The prosecutor is now a judge and, according to the show, currently under investigation for the incident.  Here is the full segment.  It lasts about 14 minutes, but there are a couple of commercials within it.  Pay attention to the prosecutor's "apology" (at about the 8 minute mark). He apologizes because "the system" failed, but then denies any misconduct on his part. I wonder which part of the system he means failed? I have more comments below. Please continue reading after you watch the video. If, for some reason you can't see the video below, you can watch it here.



It seems to me that the real issue in this case starts with the question of whether the evidence that was allegedly withheld was "exculpatory." Note in the video that the attorneys for the defendant argue the evidence would have proven the defendant was innocent while the current lawyer for the former prosecutor claims it would not have.

If the evidence was "exculpatory", then the prosecutor had a duty to disclose it. Since there is evidence he did not disclose it, that would lead you to conclude that he acted in violation of his duty. Note that under the current Model Rules, the prosecutor would clearly have a duty to disclose the documents in question because the duty under the MRs is broader than the duty under previous case law (namely Brady v Maryland).

The problem with the discussion of the issue by the lawyers in the video is that whether the documents would have proven the defendant innocent is actually irrelevant. "Exculpatory" does not mean that it would have exonerated the defendant or proven that the defendant was not guilty. It only means that there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See Kyles v Whitley, 514 U.S. 419 (1995).

Based on this, I think the evidence was exculpatory and that, therefore, there was a duty to disclose the information.

The statement by the current lawyer for the then-prosecutor that a claim that his client engaged in unethical conduct is "unwarranted" is ridiculous. Given the facts, the claim is clearly warranted. Also, it bothers me that the lawyer claims we are dealing with "speculation" about things that happened 25 year ago. Yet, here is one thing that does not seem to be speculation: the defendant did not get the documents. No one - not the prosecutor/now judge nor his lawyer - disputed that. The only thing they claim is that the prosecutor now says he could not believe he wouldn't have had a conversation with the defendant's attorney about the case. He did not claim that he did in fact disclose the information. As to that the best he could do was to say he did not remember.

UPDATE 4/21/13:  A judge has decided there is sufficient evidence that the former prosecutor should be tried for criminal contempt, tampering with evidence and tampering with government records. He said Anderson concealed the availability of exculpatory evidence. Go here for more details.

Former prosecutor disbarred for soliciting false testimony

The former chief drug prosecutor for Wayne County, Michigan has been disbarred for her role in soliciting false testimony. Go here for more information.

Update on the debate on whether states should allow fee sharing with non-lawyers and investments by non-lawyers in law firms - UPDATED

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed.  The opinion is available here.  In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss.  The opinion in that case is available here.  The Wall Street Journal law blog has more information. 

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers.  Go here for more information.

UPDATE (3-25-12):  The Ethical Quandary blog has more here.

More comments on Supreme Court's decision on ineffective assistance of counsel

Three new articles in the New York Times discuss the importance of the Supreme Court's decisions on ineffective assistance of counsel.  The articles can be found here, here and here.  As one of the articles explains "[t]he Court's decisions affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. . . . Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with . . . little oversight . . ." In addition, the SCotUS blog has detailed analysis of the opinions here.

Article calls for New York to change its position on metadata

Here is an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.  The article concludes that these conflicting positions "serve only to place New York lawyers at a tactical disadvantage" and, for that reason, calls for New York to change its approach to the issue.

Thanks to the Legal Ethics Forum for the link.

Comments on yesterday's Supreme Court's decisions on ineffective assistance of counsel

The SCotUS blog is listing the following articles on yesterday's Supreme Court decisions on ineffective assistance of counsel:

Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.

Also, Orin Kerr has a comment at The Volokh Conspiracy.

Supreme Court decides two cases on ineffective assistance of counsel

Today the Supreme Court announced two decisions in cases involving claims of ineffective assistance of counsel that essentially conclude that criminal defendants have a constitutional right to effective lawyers during plea negotiations.  The Court, also set the standard to meet in order to obtain relief when the defendant's argument is that the attorney's ineffective assistance resulted in the rejection of the plea offer.  Both cases were decided by 5 to 4 votes.  I have not had a chance to read the opinions myself, so I will reserve my opinion for now.  Meanwhile, however, here is a quick summary (courtesy of the SCotUS blog) and a few links.

In the first opinion, Missouri v. Frye, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.  The oral argument for this case is available here.

In the second opinion, Lafler v. Cooper the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.  The oral argument is available here.

The New York Times has more the story here.

More comments on the prosecutorial misconduct report from the Ted Stevens case

The New York Times has published an editorial on the need for the Department of Justice to "take an even closer look at the powers and responsibilities of its prosecutors, after a scathing new report on the case by a court-appointed investigator" after the DoJ acknowledged pervasive prosecutorial misconduct in the corruption trial of the late Senator Ted Stevens.  The editorial is available here.

The LawProfs Blawg has a more detailed discussion of the report here.

The Legal Profession blog has a short comment here.

The Blog of the Legal Times is reporting (here) that the Senate Judiciary Committee will hold a hearing on March 28 at 10 a.m., to discuss the allegations of prosecutorial misconduct in the Ted Stevens case.  The author of the report is expected to testify.

More comments on the prosecutorial misconduct report from the Ted Stevens case

Go here and here for articles with some analysis on the report on prosecutorial misconduct in the Ted Stevens case. 

Thanks to the Legal Ethics Forum for the first link.

Oklahoma considers banning litigation financing

Back in January, 2011, I reported that the Illinois legislature rejected a bill that attempted to regulate entities that lend money to litigants in exchange for a percentage of the amount recovered in the case.  Typically, the interest rates on those loans are very high (I have seen ads that say the rates are over 45%, for example.)  For some background information on the issues related to this industry, you can take a look at the discussion of the legal and ethical issues that relate to the litigation loan industry in Room for Debate, the Legal Ethics Forum and The Wall Street Journal Law Blog, the NY Bar Association and the New York Times. 

Now comes news that in Oklahoma, Oklahoma Senate Bill 1780 would make it against the law for a company to make a loan to a plaintiff that would be paid back from settlement funds or a jury award. It would apply to any case pending in an Oklahoma state court or any federal court in the state.  Go here for the full story.

Contingency fees based on what you can save the client - "reverse contingency"?

You are representing a client in a contract dispute where the opposing party claims he is owed $10,000 for services rendered. The client likely will not be able to pay your hourly rate to handle the matter. Can you enter into a “reverse contingent fee” agreement whereby you will be entitled to a percentage of the money that you save the client?  ETHICSearch has published a short article explaining why the answer is yes, as long as the fee is reasonable, of course.

Ted Stevens report has immediate effect: bill to change discovery obligations

Lawmakers filed a new bill Thursday that would change discovery rules in federal criminal cases, requiring prosecutors to turn over any information that would be favorable to the defense as soon as possible – or face sanctions.  Go here for the full story.

Big news of the day: The report on prosecutorial misconduct in the Ted Stevens case has been released, finally!

The long awaited and controversial report on prosecutorial misconduct in the Ted Stevens case has finally been realeased. The 500+ page report is available here.  The Justice Department hasn't yet published its internal review of the case, but it has issued a press release available here (thanks to the Legal Ethics blog for that link!).  For more on the latest news on the report, go to the Blog of the Legal Times (here, here, here and here) and the Wall Street Journal law blog.  For more on the background story involving the Ted Stevens case go here, here, here, here, here and here.

Indiana State Bar Association Opinion: Attorneys should Not Use Group Coupon Programs

Unlike other states that have addressed the issue, the Indiana bar has issued an ethics opinion (Ethics Op. No. 1 of 2012) which concludes that using "groupon" or other similar group coupon or daily deal arrangements to market legal services is probably unethical.

The opinion states that using these programs may violate a number of Indiana rules of professional conduct including rules 2.1, 1.15, 1.16, 5.4 and 7.2 because the programs would allow someone other than the attorney to hold client funds or create conflicts of interests or allow the sharing fees for referring clients.

The full text of the opinion is available here.

In contrast, ethics opinions in other states have found that is not unethical for lawyers to participate in group coupon programs.  For example, see New York State Ethics Op. 897, North Carolina Ethics Op. 2011-10, and South Carolina Ethics Op. 11-05.

Debate on judicial recusal at the Supreme Court

The University of Pennsylvania Law Review sponsors a website called PENNumbra which hosts debates on important topics.  The debates usually involve two authors.  Each one writes an opening statement, a reply to the other's opening statement and a closing statement.  Today the debate is on whether the Supreme Court should adopt rules or guidelines to regulate recusal by the justices.  The first opening statement is now available here.  Check the website for the future installments.

Should state guarantee counsel for indigent parents in abuse and neglect proceedings?

For decades poor parents in New Hampshire were provided lawyers if they could not afford them, but funding was cut during the last legislative session.  The issue is now before the state's supreme court and the First Amendment Center is reporting today that the oral arguments on whether indigent parents have a right to court-appointed counsel in abuse and neglect proceedings will be open to the public.  Unfortunately, I don't have the name of the case or any more information.

Update on the debate on whether states should allow fee sharing with non-lawyers and investments by non-lawyers in law firms

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed.  The opinion is available here.  In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss.  The opinion in that case is available here.  The Wall Street Journal law blog has more information. 

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers.  Go here for more information.

IL court of appeals issues two opinions on ineffective assistance of counsel

Earlier today, the Illinois court of appeals issued two opinions on ineffective assistance of counsel.  In the first one, People v. Watson, the court reversed the defendant's conviction for residential burglary because the defendant’s trial counsel was ineffective in failing to cross-examine the State’s DNA expert or present evidence that the partial profile should be considered a “nonmatch,” failing to present expert testimony that the statistical calculations relied on by the State were flawed, and failing to understand the DNA evidence or ensure that it was properly explained to the jury.  Interestingly, (and sadly) the court also noted that the defendant's posttrial counsel was also ineffective in only filing a notice of appeal without filing any postsentencing motions.  The court remanded for a new trial with new counsel.

In the second case, People v. Remsik-Miller, the defendant was convicted and sentenced to 22 years in prison.The defendant then filed and argued a post conviction motion pro se in which she argued that her attorney "did not represent her to his fullestability during [her] trial.”  The motion was denied, but the court of appeals remanded. The court decided that before deciding the motion it would have to be determined  whether defendant’s comment —that defense counsel did not represent her “to his fullest ability during [her] trial”—amounted to an allegation of ineffective assistance of counsel which would have triggered the lower court’s duty to inquire.  For this reason, the court of appeals remanded "for the limited purpose of allowing the trial court to conduct the necessary preliminary examination as to the factual basis of defendant’s allegation."

Holder lets us know what we already knew

It has not been a good month for Eric Holder, the Attorney General of the US.  First it was his ludicrous speech about the President's authority to order extrajudicial killings without due process - about which I and others have commented here, here, here and here.  Then there was the story about the attempt to hide the identity of a prosecutor who engaged in misconduct and the scathing response by the court criticizing the Dept of Justice (see here), and now it is his testimony regarding the report on prosecutorial misconduct during the Ted Stevens case.

The Blog of the Legal Times is reporting (here) that Holder testified "on Capitol Hill that the Ted Stevens report on prosecutorial misconduct contains "disturbing" findings against Justice Department lawyers."  Duh! Given that the court-appointed investigator found back in November 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, Mr Holder's statement is quite an understatement.  Tell us something we did not know already.  For more on the background story involving the Ted Stevens case go here, here, here, here and here.

The real question is how widespread prosecutorial misconduct is and whether it is true, as some have claimed, that Holder's administration is knowingly turning a blind eye to it.  On this question, take a look at the comments under the report in the BLT.

NYT editorial criticizes Obama administration policy on extrajudicial killing

I have been following the critical reaction to the very problematic argument that the Obama administration has inherent (and pretty much absolute) power to order extrajudicial killings.  See here, here and here. 

Today, the New York Times added its voice to the debate.  It criticizes Obama's position in an editorial that starts by stating that "President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability."  Go here to read the full text.

More comments on Obama administration's policy on extrajudicial killings

A few days ago, I wrote about the Attorney General of the United States' speech in which he tried to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. (See here and here).  Today Johnathan Turley is reporting here that FBI Director Robert Mueller declared before Congress that he simply does not know whether the current policy would allow the killing of citizens in the United States.  Go here for more.

Alcoholism, depression and suicide in the legal profession

Abnormal Use has a story with lots of links to information on a problem we discuss in class and that was the subject of a session at a recent national meeting of the ABA's Center for Professional Responsibility: the fact that the legal profession has higher than average rates of alcoholism, depression and suicide.  In fact, a study by Johns Hopkins University found that among more than 100 occupations studied, lawyers were three times more likely to suffer from depression than any other profession.  Also, the National Institute on Alcohol and Alcohol Abuse estimates that the rate of alcohol or chemical dependency among lawyers may be twice as high as that of the general population.  As if this was not enough, suicide is reportedly the third leading cause of death among attorneys, after cancer and heart disease and the rate of death by suicide for lawyers is nearly six times the suicide rate for the general population. For more information and links to some of the studies that reach these conclusions go here.

Another comment on Eric Holder's speech

Yesterday I wrote about Eric Holder's speech on the Obama administration's policy on extrajudicial killing.  Professor Jonathan Turley published a longer comment on the subject today which you can read here.

New trial ordered because of improper courtroom conduct

Over the years, I have commented on a number of cases where courts have reversed convictions due to improper comments by prosecutors, but I don't think I have posted a case where the court orders a new trial in a civil case...  until now. 

In this case, Maraviglia v. Lokshina (available here), the court concluded, among other things, that "[a] new trial is warranted in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants."  The court described some of the conduct as follows:

The defendants' counsel repeatedly denigrated the medical background of the injured plaintiff's treating physician. Counsel also made inflammatory remarks, including commenting during summation that the plaintiff's treating physician and the plaintiff were "working the system."  Moreover, counsel remarked that the injured plaintiff's treating physician testified "at an enormous amount of Workers [Compensation] proceedings" and was the "go-to" doctor in Suffolk County for patients who wished to stop working. By contrast, counsel vouched for the credibility of the defendants' expert witness by thanking "God there are people like [him] . . .

Additionally, during cross-examination of the plaintiffs' expert anesthesiologist, counsel for the defendants twice referred to the medical center where this doctor performed certain procedures as a "parking lot," even though the court had sustained the plaintiffs' objection to the first use of this reference. . . ."

Thanks to the Legal Profession blog for the update.

Eric Holder on why it is OK for the President to order someone to kill you

The Attorney General of the United States spent a little time trying to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. But, Jonathan Turley explains, at least "Holder promised not to hunt citizens for sport."

Kevin Underhill takes the speech apart in a piece in Forbes and then again in Lowering the Bar, where he writes, in part that:

The lowlights of the speech, I think, were Holder's promise that no citizen would be blown up unless the government had determined (among other things) "that the individual poses an imminent threat of violent attack against the United States," and his somewhat unusual definition of "due process."

First, it turns out that "imminent" doesn't mean what you think it means (or what the dictionary thinks it means). Rather, the concept "incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States." If you see anything in there that has to do with being "imminent," please let me know. The "future" is a big place, and just because something might be in it does not make that thing "imminent."

Second, Holder did promise that nobody would be killed without "due process." Comforting! But no! Because this also doesn't mean what you think it means. "'Due process' and 'judicial process' are not one and the same," Holder said, "particularly when it comes to national security. The Constitution guarantees due process, not judicial process." Oh. So what process are we due? Executive process. But have no fear, you won't be put on a death list without a "thorough and careful review" of the (secret) evidence against you by the Executive Branch, Holder basically promised. So there's really no need to get those other branches involved. Let's just keep this between us.

Here is a video of the speech.

Secont Circuit Court of Appeals declares NY advertising rule unconstitutional

The Wall Street Journal law blog is reporting that the Court of Appeals for the Second Circuit has found that New York's rule of Professional Conduct 7.4 is unconstitutional.

The rule states that if a lawyer holds himself out to be a specialist, the name of the organization that certified the lawyer must be identified "prominently" in advertisements or elsewhere.  In this particular case, the lawyer in question did display the information in his billboard ad but the NY attorney grievance committee argued the size of the font was too small to meet the “prominently made” requirement.

The attorney challenged the constitutionality of the rule in federal court and lost, but the Court of Appeals has now reversed.  The opinion is available here.  For more information and analysis go here.

NYT Editorial calls for resignation of racist judge

In a short editorial, available here, the New York Times is calling for the resignation of the federal district judge who sent the racist message about Obama's mother.

Two recent cases illustrate basic principle of lawyer accounting: if the client overpays, you can't pocket the money!

Suppose you go to a store and pay with a $10 bill, but thinking you paid with a $20, the cashier gives you more change than you deserve. Would you correct the error?   You don't need to tell me... but let me tell you this, if you are a lawyer and the cashier is a client paying for your bill, you better....!

Two separate cases reported this month in the Legal Profession blog deal with the issue.  In the first one, Iowa Supreme Court Attorney Disciplinary Board v. Ries, Jr, an attorney was suspended for not refunding the clients after it was pointed out they had paid the bill twice.  The attorney charged the client a $500 retainer but, after the representation ended, the final invoice failed to credit the $500 that had already been paid. The attorney then did not pay attention to the client's concerns when the client discovered the error and complained the attorney had been paid $500 more than he was entitled to.

In the second case, the Minnesota Supreme Court imposed an indefinite suspension of no less than two years to an attorney who had engaged in a pattern of misrepresentations, failed to maintain a trust account and failed to pay an arbitration award.  Among other things, at one point the attorney was to receive an initial retainer payment of $1,000. She mistakenly was paid $5,000 which she did not place in escrow and did not refund when she was confronted with the error and discharged.

More comments on prosecutorial misconduct, this time from Australia

Here is an interesting post from the Australian Professional Liability Blog on prosecutorial obligations. Although the language used is different in many ways, the underlying duties discussed are very similar to those in the rules of conduct in most states, the ABA Model Rules and the Restatement.  I did find interesting that more than one source mentions that prosecutors have a duty to help the court "arrive at the truth," something I would not say since due process, rather that "the truth" seems to be the main goal in our system.  As a famous movie quote goes, "the truth is we don't know what the truth is."  (The first person who can name the movie gets a prize.)

Rather than mention a duty to help find the truth, the text of the comment to ABA Model Rule 3.8 states:  "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.. . . "

Prosecutor objects to disclosure of report on prosecutorial misconduct in Ted Stevens case; asks DC Circuit Court to review the order

Last month I reported that, finally, U.S. District Judge Emmet Sullivan ordered the release of the report on prosecutorial misconduct in the Ted Stevens case.  The scheduled date for the release of the report is March 15.  Go here, here, here and here for more on the story.  However, the Blog of the Legal Times is reporting today (here) that one of the prosecutors in the Stevens case has filed a notice indicating he wants the U.S. Court of Appeals for the D.C. Circuit to examine whether the report should be released to the public.  Reportedly, Judge Sullivan has stated that keeping the report confidential “would be a disservice and an injustice.”  Because I think that courts should always do as much as they can to expose and punish prosecutorial misconduct, I agree.

Chief Judge of the US District Court of Montana caught sending racist joke by email

Richard Cebull, Chief Judge of the U.S. District Court for the District of Montana, has acknowledged that he forwarded a racist email to several friends.  Judge Cebull has replied to the controversy saying the e-mail was not meant to be a racist comment but an attack on President Obama. Hmm.  Let me see if I understand.  It is not racist if it is an offensive attack on one black person but not on all black people.   Another problem with this, if you read the message you will see the comment is not on Obama but on his mother.  The judge also says the message was meant to be private. I see, now.  So I guess that according to his own logic, the judge is not a racist.  He's just an idiot.  Professor Jonathan Turley is more eloquent than I on the issue here.  He also has a copy of the e-mail message itself.

For more on the story go to the Billings Gazette, the Great Falls Tribune and the Wall Street Journal law blog (which provided these links).

Second Circuit Upholds Rules That Prevent Online Graduates From Taking N.Y. Bar Exam

In a summary order in a case called Bazadier v. McAlary, (available here) the Court of Appeals for the Second Circuit has held that the state of New York has the right to keep graduates of online law schools from taking the state's bar examination.  The court endorsed the conclusion of the district court that the admissions rules at issue do not violate applicants' rights to equal protection or freedom of association.  For more information check out the ABA/BNA Lawyers' Manual on Professional Responsbility (28 Law. Man. Prof. Conduct 117).

How not to practice law: lie to the disciplinary board in an attempt to cover your misconduct - third time this week!

Just a few days ago I posted two notes about cases in which the attorneys lied to the disciplinary board in an attempt to cover their misconduct.  As reported in the Legal Profession blog, here is a third, and it may be the "best" one yet.  In this case, called In the matter of Joan Palmer Davis, the Georgia Supreme Court disbarred the attorney primarily for neglecting a case. Among other things, the attorney failed to appear before the court for a hearing and the case was dismissed.  When questioned about the incident, the attorney claimed she did go to the hearing.  Really?  I am sorry, but how smart do you think it is to lie about whether you were present at a hearing or a meeting of some sort, where there probably is an actual written record and witnesses who could be called to corroborate the allegation - in some cases this could include the judge!  Didn't think that one though, did you!?  In fact, at the disciplinary hearing, four people testified that the lawyer never appeared at the hearing.

You can read the opinion here.

ABA Commission's proposed amendments to the Model Rules

Prof. Andrew Perlman, reporter for the ABA Commission that is preparing the next round of proposed amendments to the Model Rules, has posted a very informative note with links to lots of information on the most recent proposals here.  Some of the proposed changes are minor, others are important.  They include, among others, changes to the rules on competence, confidentiality, communication, and many issues involving new technologies.

How not to practice law: lie to the disciplinary board in an attempt to cover your misconduct -- UPDATED

We have seen this one before, but it never ceases to amaze me.  The Legal Profession blog is reporting that the Maryland Court of Appeals has disbarred an attorney, whose most serious violation was that she submitted false documents in defense of the disciplinary charges.  The case is called Attorney Grievance Commission v. Payer and it is available here.

UPDATE 2-24-12:  The Legal Profession blog is reporting yet another case of an attorney making things worse by lying during disciplinary proceedings.   In this case, the attorney engaged in misconduct in connection with a real estate transaction and compounded the problem by testifying falsely in the ensuing bar proceedings.  What ts different about this case is that the attorney was only suspended for eighteen months rather than disbarred.  The case is called Matter of Gurevich and it is available here.

Yet another opinion from Washington DC on the concept of "moral turpitude"

In a new case, reported today in the Legal Profession blog, the District of Columbia Court of Appeals has concluded that a conviction for federal witness tampering involves moral turpitude per se and thus requires disbarment.  The case is called In re Walter Blair and it is available here.

As you may remember, this is not the first time I have mentioned the DC courts' view on what constitutes moral turpitude.  Last September I discussed a case from Washington DC interpreting the notion of moral turpitude in an attempt to decide the proper punishment for misconduct.  See here.  In that case, the Disciplinary Board, Bar Counsel and the courts disagreed on the proper sanction for an attorney who had engaged in conduct that involved moral turpitude. 

ABA Commission on Ethics 20/20 Releases Nearly Final Drafts of Proposals

Prof. Andrew Perlman, one of the members of the ABA Commission on Ethics 20/20, has posted an announcement in the Legal Ethics Forum stating that the Commission has released nearly final drafts of the proposals that the ABA House of Delegates is expected to consider at its August 2012 meeting.  The drafts cover issues relating to technology and confidentiality, technology and client development, outsourcing, the establishment of an office in another jurisdiction while admission in that jurisdiction is pending, admission by motion, and the disclosure of confidential information to detect conflicts of interest.  A cover memo describing the newest drafts and how they differ from prior drafts is here. The deadline for comments on these new draft proposals is April 2, 2012.  The Commission plans to finalize these proposals shortly thereafter, so if you would like to comment, please do so before the deadline by sending an email to the Commission's Senior Research Paralegal, Natalia Vera, at natalia.vera@americanbar.org.

Dos and Don’ts for Departing a Law Firm

What are some of the legal and ethical issues that arise when a lawyer leaves a firm?  The Legal Intelligencer Blog has a series on "Dos and Don’ts for Departing a Law Firm" here, here and here.

Supreme Court Justices say no to ethics rules for Supreme Court Justices

Lyle Denniston of the SCOTUS blog is reporting today that Chief Justice John G. Roberts, Jr., has told five members of the Senate Judiciary Committee that the Justices do not plan to adopt as a binding ethical code for themselves — a position that is not new.  Go here for the full report.

Justice Dept asks Court to remove the name of district attorney who engaged in misconduct from opinion, Court refuses

I have often complained that courts do not do enough to encourage proper conduct by district attorneys.  Today I am happy to report an incident that shows the opposite.

The story involves an assistant US district attorney who engaged in certain misconduct. When the Ninth Circuit's opinion named the prosecutor by name, the government filed a motion asking that the name be removed but the court refused not only deciding to retain the references to the district attorney by name but also adding criticism of his superiors. The opinion reads, in part:

We are also troubled by the government’s continuing failure to acknowledge and take responsibility for Albert’s error.  The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. . . . Their job is not just to win, but to win fairly, staying within the rules. . . . That did not happen here, and the district court swiftly and correctly declared a mistrial . . .
When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government’s brief on appeal. Instead, the government attempts to shift blame by stating that “the prosecutor gave the defense counsel an opportunity to stop the offending question before the prosecutor asked it,” . . . 

The full text of the opinion is here (thanks to Jonathan Turley for the link). For more on the story go here and here.

Obama proposes budget increase for Legal Services but it is still less than what the agency says it needs

A couple of weeks ago I reported that 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.

Today, the blog of the Legal Times is reporting that President Obama has urged Congress to give the Legal Services Corp. $402 million for fiscal 2013, which is a 15.5% increase from the current $348 million budget.

If approved, that would be the good news.  The bad news is that the new budget would still be $68 million under  the budget proposed by the LSC, the independent agency that provides civil legal aid to the poor.

Durham County- North Carolina DA removed for prosecutorial misconduct

Prof. Jonathan Turley is reporting today that Durham County District Attorney Tracey Cline, has been removed for serious allegations of prosecutorial misconduct — something of a pattern for that office it seems. Interestingly, Cline is the successor to Mike Nifong who was disbarred for his misconduct during the infamous Duke lacrosse team case a few years ago.

How not to practice law: use your client's money to pay gambling debts

In a new case from New Jersey, the state Supreme Court has disbarred an attorney for misappropriation which included the use of money from a clients' trust account to pay gambling debts.  Obviously, using clients' money for personal purposes is one of the worst and dumbest things a lawyer can do, and, as we know it typically leads to disbarment.  

However, since gambling can be an addiction, I am not ready to pass judgment on this particular case.  If jurisdictions have established programs for lawyers addicted to alcohol and drugs, should they also provide help to gambling lawyers who have lost control of their extracurricular activities?

Go here for more information.

How not to practice law: pull a gun on a process server when he is trying to hand you some papers

An Illinos Hearing Board has recommended a 60-day suspension of a former elected State's Attorney who was convicted of the aggravated assault of a licensed private detective. He had pulled a gun on the victim in the court parking lot when an attempt was made to serve him with process. The process involved a suit filed against him by his former secretary.  For more on the story, go to the Legal Profession blog and the Jonathan Turley blog.

Judge orders release of report on prosecutorial misconduct in the Ted Stevens case - UPDATED

How about that!?  Last night I wrote about an article in the NY Times calling for the release of the report on prosecutorial misconduct in the Ted Stevens case (here) and this morning the Blog of the Legal Times is reporting (here) that the judge has just ordered its release.

The Wall Street Journal also has the story here.

UPDATE 2/9/12: The First Amendment Center has more on the story here.

NY Times calls for the release of the report on prosecutorial misconduct in the Ted Stevens case

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.

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.

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.

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.

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.

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.

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.

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.

On the story about a lawyer who sued himself

A few days ago I posted a note about the old story about a lawyer who sued himself (here).  The Australian Professional Liability blog picked up the story and added a few comments of its own here....

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.

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.

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.

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)...

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.

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.

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.

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.

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.

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.

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:

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.

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.

You can read the full article here. 

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.

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.

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.

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.

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

As you probably remember, last November, the Supreme Court heard oral arguments (available here) in a  case on prosecutorial misconduct from New Orleans called Smith v. Cain. The oral argument before the Supreme Court did not go well for the office of the prosecutor. (See here for a report.)  This was the second case on prosecutorial misconduct out of the same office in two years.  The previous one, Connick v. Thompson, has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years."

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.

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.

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.