What should the judge do when an attorney claims he settled a case without consent from the client?

Should a lawyer be allowed to change his mind about a settlement agreement after realizing that the jury would have given his client more money than he agreed to settle the case for?  My guess is that your quick answer would be something along the lines of  "No. A deal is a deal and if you make a bad deal you have to live with the consequences."

OK, but what if the lawyer argues that he settled the case without authorization from this client (thus, by the way, admitting to unethical conduct)?  Hmm. Well, in that case, you'd think that the client should not suffer the negative consequences of the lawyer's unethical conduct.  But, even then, can't you argue that the deal is valid and that the client's claim has to be against his own lawyer for breach of fiduciary duty? 

These questions were presented to a judge in California based on the following facts (as reported in The Recorder).

The plaintiff in the case was to be transported from a Los Angeles hospital to a psychiatric facility in San Diego.  Once loaded into the ambulance, the EMTs buckled him onto a gurney but allowed his left arm to remain free because, they said, he was not being combative.  After a few minutes, the plaintiff had taken off the restraints and jumped out of the moving vehicle onto the freeway.  He filed a claim alleging ”severe, permanent brain injury” and seeking $21 million in damages.  After a full trial, the jury came back with a verdict after four hours of deliberations.

Apparently, the lawyer for the plaintiff thought a four hour deliberation meant that the jury would return a verdict for the defense and he requested a recess to suggest a last-minute settlement negotiation with defense counsel.  The parties conferred in the hallway, with their clients present, and agreed to settle for $350,000.  The parties returned to the courtroom and after they announced they’d reached a settlement, the judge dismissed the jury.

At that point, instead of entering the terms of the settlement into the record, the plaintiff's attorney went to poll some of the dismissed jurors.  The terms of the settlement were not officially entered into the record by the defendant's counsel either.

When plaintiff's lawyer learned that the jury’s verdict would have favored the plaintiff with a damages award of $9 million, he went back into the courtroom and argued that he had made a mistake and that he did not have his client's consent to agree to the settlement.

Some have argued that the claim is ridiculous because the client was present during the settlement negotiation.  I don't necessarily agree with this.  The fact that the client is present, in and of itself, does not mean the client agreed to what the lawyer did.  But the argument does raise a number of questions.  If it is true that this particular client had diminished capacity and had brain damage the attorney may very well have acted without authority. If the client had diminished capacity why didn't he have a guardian or a representative helping make decisions?  On the other hand, if the client had enough capacity to make decisions up to the point of settlement, how come the lawyer now claims he didn't?   Either way, the lawyer seems to have acted improperly.

In a post trial motion, the attorney for the defendant argued that "If plaintiff is allowed to get away with such gamesmanship in this case there is nothing to prevent any plaintiff's counsel from testing the waters with one jury, settling the case without authority from the client, interviewing the jurors to see which way they actually were leaning, and then repudiating the settlement and seeking a retrial."

After listening to arguments, the judge decided to order a new trial.  The lawyer either acted unethically or falsely admitted to unethical conduct in order to get out of a settlement he had agreed to (which is unethical itself because it is dishonest), and may have committed malpractice, but the judge has given him a second chance.

What do you think of the judge's decision?

Can lawyers participate in website that provides answers to legal questions to customers for a fee?

The South Carolina Bar’s Ethics Advisory Committee has issued an opinion (available here) in which it addresses the question of whether it is proper for an attorney to participate in a website which offers answers to questions for a fee. 

As described in the opinion, the website

"allows members of the public to post questions concerning a number of different topics for a fee. . . . .Members of the public may ask questions that will be answered by lawyers, doctors, nurses, mechanics, and other professionals. Members of the public pay the website a fee to be able to ask questions. In turn, the professional, here a lawyer, would receive the questions from the member of the public and would answer the question. After the question is answered, the lawyer is paid a fee from the website for answering the question for the member of the public. Members of the public could be from and ask a question concerning any state or other jurisdiction and are not limited to South Carolina."

Based on these particular circumstances, the Committee concluded that lawyes are not allowed to participate in the website's services.  The Committee concluded that a lawyer’s participation under these circumstances would be improper but also that "[a]s to legal information websites in general, if a website complies with all communications and advertising rules, [a] Lawyer could participate in such a program but with specific caution against inadvertently forming an attorney-client relationship by offering more than basic information of general applicability. Where legal advice is provided, it is improper for Lawyer to accept compensation from the website provider without complying with Rule 1.8(f)."

The Ethical Quandary and the Legal Ethics Forum have more on the story.

Court dismisses case against proponent of jury nullification

In a couple of weeks I will be discussing the concept of jury nullification in my Professional Responsibility class, so I thought I would link to this story reported today.

U.S. District Judge Kimba Wood (of the Federal District Court in Manhattan) has dismissed a claim against a retired chemistry professor who was arrested and charged with a misdemeanor for repeatedly handing out pamphlets to people outside a lower Manhattan courthouse urging jury nullification.   Go here and here for more on this story.

Jury nullification, of course, refers to the right of a jury to disregard the law when making a decision.  As judge Wood emphasized, an individual should not be penalized for expressing his or her approval of jury nullification, but I think there is still some debate as to whether it would be improper for an attorney (during a trial) to remind the jury of its right to nullify, let alone ask, encourage or urge the jurors to do it.

There is a lot of literature out there on this subject and there are a number of organizations that support the concept.  Go here and here for two examples.

More criticism of the prosecutor in Zimmerman case

I recently posted links to a video and some articles and comments criticizing the prosecutor in the Zimmerman case (here and here).  Here is another one.  Given a new photo released today that shows Zimmerman was bleeding after the incident, Professor Jonathan Turley concludes that

"with this photo, the charge of second-degree murder appears even more excessive and undermines Special Prosecutor Angela Corey’s claim that she was not affected by the political pressure to charge Zimmerman. I can understand a manslaughter charge, even with the photo, but no reasonable prosecutor would consider the second-degree murder charge as based on this evidence. Corey clearly must have seen this photo and the reports before her charging of Zimmerman."

Supreme Court holds private attorney is entitled to immunity when hired by government

Last week, the US Supreme Court issued its opinion in Filarsky v. Delia holding that 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.  For my previous coverage of the case go here, here, here and here.  You can read the Court's opinion here. For some commentary on the case you can go to SCotUS blog,

Is There an Ethical Duty to Convey Offers to Mediate?

Is There an Ethical Duty to Convey Offers to Mediate?   I think so....Discuss... here. 

What to expect from the ABA 20/20 Commission

It was recently reported that ABA's Ethics 20/20 Commission has decided not to draft a proposal on non-lawyer ownership of law firms.  However, next August the Commission will be proposing changes to Rules relating to technology and confidentiality, technology and advertising, outsourcing, and lawyer mobility issues. You can find a slightly dated list of proposals here. The Commission will be submitting final versions of the proposals next month.

Thanks to Prof. Andrew Perlman for the update.

Ethics 20/20 Commission Suspends Campaign to Draft a Proposal on Nonlawyer Ownership of Law Firms - UPDATED

The most controversial topic in Professional Responsibility circles today will continue to be unresolved for now... or, more accurately, there won't be any proposed changes to the current appproach. The ABA Journal is reporting that the ABA's Ethics 20/20 Commission has decided not to draft a proposal on non-lawyer ownership of law firms:

"In a joint statement released today, co-chairs Jamie S. Gorelick and Michael Traynor confirmed that the commission agreed at its meeting last week in Washington, D.C., to shelve plans to submit a proposal on nonlawyer ownership for consideration by the House in when it convenes during February's 2013 ABA Midyear Meeting in Dallas."

Go here for the details.

UPDATE (4/18/12): The Wall Street Journal Law Blog has more on the story here.

Judge in Zimmerman case recuses herself

Judge in Zimmerman case recuses herself.  Story here and video below (after a short commercial). 

Visit msnbc.com for breaking news, world news, and news about the economy

Thanks to the Legal Ethics Forum for the link to the video.

Some links on ethics and the prosecution of George Zimmerman for the homicide of Trayvon Martin

A few days ago, I posted a short interview with Alan Dershowitz in which he argues the prosecutor in the George Zimmerman case acted unethically.  He is not alone on this.  The Legal Ethics Forum has posted a list of helpful and interesting links on the on-going controversy.  Here is the list:

Andrew Perlman and John Steele questioned the behavior of Zimmerman's prior lawyers as they announced that they no longer represented Zimmerman.

Monroe Freedman questions the prosecutor's press conference.

Dan Markel, at Prawfsblawg, asks questions about the charging decision.

Radley Balko, at Huffington Post, looks more broadly at the ethcis of charging decsions.

Alan Dershowitz, in a TV interview we posted about, says that the probable cause affidavit was "unethical."

At National Review Online, David French and Andrew McCarthy disagreed about the quality of the probable cause affidavit.

At the Atlantic, Andrew Cohen has been running some pieces (here and here) that strike me as partisan and shallow, but check them out and see what you think.

Empty Wheel gives the probable cause affidavit a close, critical reading.

Here's the link to the prosecutor's press conference. The prosecutor, Angela Corey, discusses who she works for, what she's ethically allowed to say about the case, the no-contact rule, what level of evidence justifies a charging decision, and other issues.

George Conk, at Otherwise, has thoughts about the prosecutor.

Thanks to John Steele of the Legal Ethics Forum for sharing this great list.

Alan Dershowitz thinks the prosecutor in Zimmerman case was unethical in arguing for probable cause

Here is a video of an interview with Harvard law professor Alan Dershowitz in which he argues the conduct of the prosecutor in the case against George Zimmerman was unethical.




Thanks to the Legal Ethics Forum for the link.

Lousiana prohibits applicant from ever applying for admission to the bar in the future

The Legal Profession blog is reporting today on a case in which the Louisiana Supreme Court has not only denied a bar applicant's request for admission to the bar, but has decided to "permanently prohibit her from reapplying in the future."  The opinion is available here.

The day before the applicant was to be sworn in, her law school rescinded her Dean's Certificate in light of allegations of embezzlement of funds of the Student Bar Association, of which she had been the president.  As a result, admission was denied and a commissioner was appointed to take character and fitness evidence.  The record established that she destroyed SBA records that she had in her possession, failed to cooperate and "forged the signature of her attorney on a letter directing her bank not to comply with a subpoena issued by her law school."  She was found to have engaged in unauthorized practice of law and to have improperly shared fees with an attorney.

The court concluded that "[g]iven the egregious nature of [her] wrongdoing, as well as her pattern of misconduct occurring over many years, we can conceive of no circumstance under which we would ever grant her admission to the practice of law in this state."

I don't think I have ever heard of a lifetime ban like this one, although I, of course, have not read every single decision denying admission to an applicant.  

How not to practice law: stop paying child support

The New York Appellate Division for the First Judicial Department has indefinitely suspended a lawyer after it was found had not payed child support in three years and was almost $91,000 in arrears.  The order is available here.  The suspension will remain in effect until the court is satisfied that the attorney has paid in full. 

Thanks to the Legal Profession blog for the link.

Congress discusses reform to discovery in criminal cases; Dept of Justice objects

Last month, Sen. Lisa Murkowski (R-Alaska) introduced such a bill to broaden the scope of information that prosecutors must disclose to defense lawyers and more than 100 prominent lawyers have signed a letter urging Congress to take up criminal discovery reform.  The Justice Department, however, said in a statement that the proposed discovery legislation “would upset our system of justice by failing to recognize the need to protect interests beyond those of the defendant” and “would radically alter” the balance between protecting defendant rights and safeguarding against witness retaliation, disclosing ongoing investigations and protecting the national security.  The Blog of the Legal Times has more on the story here.

Can an entity file a pro se claim? Should the entity suffer the consequences because a complaint is filed by a non-lawyer?

The Illinois Supreme Court recently heard oral arguments in an interesting case that raises some interesting questions as to what constitutes the practice (and unauthorized practice) of law and as to what is the proper consequence in a case where a party is represented by someone who is not authorized to practice law.

The facts of the case are relatively simple.  The City of Chicago Department of Administrative Hearings entered four default judgments against a corporation, for certain ordinance violations.  Upon hearing about this, the president of that corporation filed four motions to set aside the default judgments, alleging that the City did not properly notify the corporation of the hearings regarding the violations. After a hearing to discuss the matter, an administrative law officer denied relief and instructed the president of the corporation that he had a right to appeal.  The officer told him that he could go to a certain office and file the necessary paperwork.  The president immediately went to the office, completed a form and filed it.  The form was a pro se complaint for review by a trial court under the Administrative Review Law.  Approximately six months after the complaints were filed, an attorney filed an appearance on behalf of the corporation at which point the City moved to dismiss the complaint on the basis that the corporation’s president who had filed the complaint in the first place was not a licensed attorney and, thus, was unauthorized to file complaints on behalf of a corporation. The trial court granted the City's motion and denied the corporation's motion to amend the complaint to include the signature of its attorney.

On appeal, the City is requesting the Supreme Court to recognize that an entity can never file a pro se claim and to impose an absolute rule that a complaint filed by a non attorney other than in a pro se case must be considered void ab initio.

The corporation is arguing that a better policy is to consider the circumstances and to decide cases on a case by case basis.  In this case, either because the filling out of a form at the direction of the administrative law office was not the practice of law to begin with or because, if it was, there was no harm to the corporation, the corporation should not lose its rights to appeal.  According to this view, the main thing is to consider the reasons why we have a rule against the unauthorized practice of law to begin with.

It seems to me this second view is more sound, and, if nothing else, more fair.  I understand we need to protect the public from inadequate representation by people who are not qualified to practice law, but that is not what happened in this case. 

The case is called Downtown Disposal Services v City of Chicago and the lower court opinion is available at 943 NE2d 185 (Ill App 2011).  You can watch the oral argument here.  If you prefer just the audio, you can listen to it here.

Illinois adopts new rule to help deliver legal services after major disaster

The Illinois Supreme Court announced today that it has adopted a new rule to facilitate the delivery of legal services in an emergency resulting from a major disaster.  In the case of an Illinois disaster, new Supreme Court Rule 718 would allow attorneys who are licensed in another state to provide pro bono publico legal services to residents of Illinois. In the event of a disaster in another state, the rule would allow attorneys licensed outside of Illinois to provide pro bono legal services to residents of the stricken state who have been displaced to Illinois because of the disaster.  The rule also would allow attorneys licensed in a stricken state to provide legal services in Illinois as long as those legal services arise out of and are reasonably related to the lawyers’ practice of law where the major disaster occurred.   Illinois Lawyer Now has more information here.

The rule is based on the ABA's "Model Court Rule on the Provision of Legal Services Following a Major Disaster" which has now been adopted in at least 14 states.  (Go here for a chart on which states have adopted the rule.)

WSJ comment on issue of whether non lawyers should be allowed to own lawfirms

The issue of whether non-lawyers should be able to "own" (as in own investments in) law firms is back in the news.  I reported on this most recently here.  Today, The Wall Street Journal law blog has posted a short comment on the subject here.  It explains that the main argument against allowing non lawyer ownership is that opening up law firm ownership will erode professional ethics, while the main arguments in favor or allowing it are that expanding ownership could help smaller law firms compete with the big firms, and that it could help make legal services more accessible to consumers.

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.