Court of Appeals for the Seventh Circuit decides question left open by the US Supreme Court in 2010: prosecutor should not be immune to civil claims for misconduct during investigation phase of a case

Back in 2009, the U.S. Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington in which it was asked to decide an important issue related to possible civil liability for prosecutorial misconduct. In that case, two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.  In response to the claim, the prosecutors contended that they had absolute immunity from liability because it has been held that prosecutors have absolute immunity from civil liability for their conduct in the process of prosecuting the case.  The issue in the case, though, was whether the same immunity should apply to the prosecutors' conduct in the process of investigating or "building" a case.

Should their right to immunity (or the level of that immunity) change depending on the role prosecutors play at the time of the alleged violation of civil rights? In Pottawattamie, the prosecutors' misconduct initially took place while they were involved in investigating the crime but it continued during the trial since they presented perjured testimony.  Should the immunity that protects the conduct during trial affect the right to recover for the misconduct that took place before the trial?  If so, couldn't a prosecutor avoid liability for pre-trial misconduct by making sure he introduced the tainted evidence during trial?

These are all important questions that the Supreme Court was ready to address, but it never got to decide the issues because the case settled soon after the oral argument (for $12 million).

Three years later, in an opinion written by the very influential Judge Richard Posner, a split panel of the Court of Appeals for the Seventh Circuit has held that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction.  The case is called Fields v. Wharrie and the opinion is available here.

The case is remarkably similar to the one before the Supreme Court back in 2010.  Here a prosecutor fabricated evidence against a defendant during the investigative stage of the case. He then coerced witnesses to give testimony that the prosecutor (as well as the witnesses) knew to be false.  Based on the false evidence, the defendant was convicted of two murders. The defendant eventually was acquitted in a retrial and subsequently received a certificate of innocence from the court in which he had been tried.

In the opinion, Judge Posner addressed the same issues raised back in 2010.  For example, he explains that "[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a ‘license to lawless conduct,’which the Supreme Court has said that qualified immunity is not to do."

For more information and commentary on this important case go to Seeking Justice, Res Ipsa Loquitur and the ABA Journal.

New Hampshire considers new jury nullification statute

In class we discuss the concept of jury nullification and the issue of whether it would be proper for an attorney to ask the jury to ignore the law when deliberating.  As you know, this is an issue that has been around forever and one about there seems to be a never ending debate.  There are organizations devoted to informing the public about nullification and there is literature warning about its dangers.  Now the topic is back in the news because the state of New Hampshire is considering enacting a law that would require judges to inform the jury of its power to engage in nullification.

As you would expect, not everyone agrees this would be a good idea.  An Op-Ed piece in the Chicago Tribune states, for example, that "[f]or judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so."

Over at Gawker, a short article explains how jury nullification can be double edge sword: "Jury nullification seems like a great idea when you imagine using it to free, say, low-level drug offenders who face long mandatory sentences that are fundamentally unjust. It seems like a terrible idea when you imagine racist southern white juries using it to railroad a black defendant just because they don't like his looks."  And then concludes that "[t]he notion that twelve randomly selected citizens are the most effective backbone of a fair justice system is already a bizarre one; to give them explicit instructions to ignore the law if they so choose seems like a dangerous step towards a legal system in which slick rhetoric, outward appearance, and expensive lawyers are more important than the actual law. Uh... even more so than now. If you're a consequentialist, it might be fair to support jury nullification under the assumption that striking a blow against the War on Drugs will do a great deal of good. But the long term consequences of this policy are impossible to know."

I am still undecided on this one...  I am sympathetic to the argument that says that attorneys should be allowed to argue nullification to the jury, but since nullification can be used for evil purposes as well as for good, I have always been afraid of the dangers of nullification.

For this reason, I think I would allow attorneys to decide if they would want to encourage the jury to engage in nullification (ie, I would not consider it improper for them to urge the jury to ignore the law), but I would not favor a statute that would mandate the judge to do so.  I think the decision on whether to present the option to the jury should be a case by case tactical decision left to the defense counsel.

ABA Journal Poll: Do you think character and fitness standards for the bar are too lenient or too harsh?

In light of the controversy generated by the case of Stephen Glass in California, The ABA Journal is asking its readers to comment on whether they think the character and fitness standards for the bar are too lenient or too harsh.  To post a reply or to read what others have written, go here.  Right now there are only three responses, but my guess is the poll will be open for about a week, so you can go back to read more comments in a few days.

Should lawyers be disciplined for criticism of judges?

Issues related to the freedom of speech of lawyers continue to hit the headlines.  A few days ago, I posted a comment on the on-going debate about whether an attorney should be disciplined for inappropriate and offensive comments about another lawyer.  I have also posted on the question as it relates to the limits on comments about judges (see here).  I am writing about that second question again just to point out that A Public Defender has posted his own comments (here) on whether attorneys should be disciplined for criticizing judges.

How not to practice law (as a judge); and some thoughts on social media

I have not posted a "How not to practice law" story in a while, so here is a short one from today's headlines, as reported by Res Ipsa Loquitur:

Judge Linda D. Schoonover appears to have a different concept of a “friend of the court” party. The Seminole Circuit judge has been removed from a divorce case where she tried to “friend” one of the litigants, Sandra Chace. Chace declined on the advice of counsel to be a friend of Judge Schoonover. Her lawyer says that Schoonover responded with retaliation against her in a type of “scratch a Friend find a Foe” ploy. The judge proceeded to shift most of the marital debt in her divorce to Chace and giving her husband, Robert Loisel Jr., a larger alimony award. Now Schoonover’s colleagues have overturned her order that denied Chace’s motion for disqualification. The panel found that “a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor.” The panel held that “The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case, or risk offending the judge by not accepting the ‘friend’ request.” 

Clearly, the judge should be disqualified.  The court got that part right.  However, the incident raises a couple of other questions in my mind.

First, should the judge be disciplined?  Assuming all the allegations are true, she exercised incredibly bad judgment which, in my opinion, raises a question as to her ability to serve as an impartial judge.  Some people have become so involved in Facebook they seem to forget that they (and Facebook) actually operate in the real world.

Secondly, there is the issue of competence.  The rules of professional conduct in almost every (if not all) jurisdictions now include as part of the measure of competence the duty to understand how to use "technology" and the duty to understand the risks involved in using it.  This, as you may recall, was the result of the debates about metadata a few years ago, but it also relates to the use of social media.

Finally, given that Facebook is causing so many problems, there is the more general question of whether states can do something to regulate or at least provide more guidelines for the proper and improper use of Facebook and other social media by lawyers.  A lot of attention has been devoted to the use of social media as marketing tools for attorney advertising but maybe not enough for the purely social aspects of social media.  Last year, the ABA issued an opinion on the use of social media by judges.  See my post on it here.

Not everyone agrees with the California Supreme Court regarding denial of admission to Stephen Glass

Yesterday I posted a comment on the decision by the California Supreme Court to deny admission to Stephen Glass.  (See here.)  Today I found a comment by Prof. Shaun Martin (San Diego) in which he argues the decision is wrong.  He makes a good argument for the position that Glass should have been admitted.  It is worth reading (here).

Among other things, he argues "Is Glass likely to be a sleazy lawyer? No. No way. In large part (if not entirely) because of his prior misdeeds."  And later concludes: "So if the relevant inquiry is (as it largely is) whether we believe that Glass will be a good and proper lawyer, who'll faithfully protect the interests of his clients, I think the answer's pretty clearly "yes"."

As I discussed in my previous post on the case, the key question in these cases is whether evidence of past conduct is a reliable indicator of future conduct.  I know there is some research on this, but it is limited and I am not sure how much we can learn from it.  If there was reliable research that helped answer the question with some degree of certainty then I would be fine relying on that answer.  However, absent that, all we have is the human perception of those passing judgment on the conduct.  They may be right or they may be wrong, but that is what we have.

Admission to the profession by motion?

As reported in the Legal Ethics Forum:

The ABA Journal is running a story this month that is rather critical of states that have no admission by motion rule or have procedures that are more restrictive than those contained in the Model Rule.  

As some readers may recall, the ABA Commission on Ethics 20/20 successfully proposed a modest liberalization of the Model Rule, which now allows lawyers to gain admission by motion after three, rather than five, years of practice.  The Commission also successfully proposed a resolution calling for states that have not adopted the Model Rule to do so and for states that have admission by motion procedures to delete requirements (like reciprocity provisions) that are more restrictive than the Model Rule.

Professor Andrew Perlman, who served in the ABA Commission 20/20, is quoted in the article saying that restrictions beyond those contained in the Model Rule (such as reciprocity provisions) “serve no public policy purpose.  In my view they are indefensible from the standpoint of public and client protection and should be eliminated.”

Should an attorney be disciplined for comments about another lawyer in a blog?

As we all know, the practice of the profession is heavily regulated and part of that regulation includes limits on our freedom of speech.  However, that does not mean that attorneys do not have the right to express their opinions, including their opinions about other lawyers.

As reported in a number of blogs, a law professor from the University of Denver has filed a complaint with the Illinois disciplinary authorities based on the fact that a certain Illinois lawyer has been engaging in what she considers cyber-harassment (or cyber-bullying) by leaving insulting, racist and sexist comments on her blog and other blogs.

I have not seen all the actual comments the professor is complaining about and maybe if I did I would change my mind, but from what I have read about the allegations, I am skeptical that allegations of improper speech should be sufficient to support a disciplinary complaint and, if they are, I am troubled by the implications of such a complaint on the principles of freedom of speech.

There is no question that some of the comments cited in the various blog posts about this story are inappropriate, and many are quite offensive, but others are just exaggerated expressions of opinion meant to make fun of the work of law school professors.  (Some of the comments could very well have been about me and my work.)  Yet, I don't think that the comments, or more accurately, the conduct of posting the comments, should be the basis for disciplinary sanctions.

(If you want to pause now and look at the blog posts in which the professor explains her views and some of the comments to which she is responding, go here, here, here, here and here.  Otherwise, finish my post and come back to them later.)

As law professors, scholars and bloggers we put ourselves and our ideas out there for open criticism.  The fact that some of that criticism is done behind the protection of anonymity, the fact that some of the criticism is offensive, and the fact that sometimes we have no recourse to respond to the criticism should not allow us to ask the state to impose sanctions upon those who have exercised their right to criticize.

The rules of conduct in most states do recognize a duty not to engage in speech that is prejudicial to the administration of justice (a standard that is too vague also), but that standard is not at issue in this case.

The professor's effort to punish the attorney who criticized her threatens free speech and may result in a chilling effect on those who wish to engage in discussions whether in writing, in the classroom, on the internet or anywhere else.  The most basic principle underlying the notion of freedom of speech is that the state cannot punish someone for protected speech merely because someone might find the speech offensive.  That could be the result of the complaint at issue here, and that is why I think the request for sanctions is troubling.  If the state agrees with her, the precedent will diminish the freedom we now have as academics to engage our students in the discussion of controversial and important issues because of the fear that someone might be offended.

The controversy reminds me of Richard Delgado's work on hate speech and the possibility of recognizing a cause of action for damages inflicted by words - other than defamation.  It was an interesting proposal but it was very difficult to reconcile it with the principles of freedom of speech.  Similarly, in his works on hate speech he has argued for what some call a "responsible regulation" of speech.  Again, I understand the concern and I am sympathetic to the idea, but the problem is how to define what is responsible regulation.  And who will define that?  By definition, someone will have to decide what is acceptable speech and what isn't, and if that someone is the state... well, that is what the first amendment is there to prevent.

Neither the Illinois Rules of Professional Conduct nor the ABA Model Rules have a specific section on offensive speech, but both have clarified in the comment to rule 8.4 that manifesting bias by words may be considered misconduct if it is prejudicial to the administration of justice.  However, this is limited to circumstances where an attorney is "in the course of representing a client," as opposed to where the attorney is expressing his or her own biased opinions or world views.

Interestingly, the issue of whether an attorney can be disciplined for offensive speech is not new to Illinois, although in a different context.  If the case moves forward and if it reaches the state Supreme Court, it may give the Court the chance to address the question it did not address in 1999 when it decided not to review the denial of admission to practice to a white supremacist.  In that case, the Committee on Character and Fitness denied admission and the applicant appealed arguing that "the Committee’s use of his expressed views to justify the denial of his admission to the bar violates his constitutional rights to free speech."  The Supreme Court denied review thus avoiding the issue and not setting any precedent.  In a short but interesting dissenting opinion, however, one of the justices argued that the appeal raised a significant constitutional question that deserved explicit, reasoned resolution by the court. Unfortunately, the Court did not go for it.

Although the context is different, I think the issue is similar.  One of the issues discussed by the dissenting opinion in that case is the question of whether an applicant can be denied admission to practice for expressing views that would not subject a practicing lawyer to discipline.  The judge, thus, seems to imply that there is a strong argument that expressing racist views would not subject an attorney to discipline.

For more commentary on the freedom of speech implications of this case, you can check out:

Prof. Jonathan Turley's Res Ipsa Loquitur blog ("That does not sound like the basis of an ethics complaint.")

My Shingle (the "decision to file an ethics complaint against the commenter sets unspeakably bad precedent for bloggers exercising their First Amendment rights.")

Above the Law (I don’t see how it’s workable to sanction lawyers who say disgusting things online. Lawyers say racist, sexist things all time.)

Disbarring the Critics ("...disdain for the First Amendment by attempting to silence a critic, albeit an anonymous one, by using very general rules in the Rules of Professional Conduct...")

Having said all that, however, it is possible there is more to the story.  My comments (and those of the other blogs I linked to) are based on the assumption that the disciplinary complaint is based merely on commentary (speech), not on conduct.  The distinction is, of course, significant.  If the allegations are about conduct, particularly conduct that can be classified as criminal, then the issue is different and there would be a lot more support for the argument in favor of discipline.


UPDATE (July 21, 2014):   The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger. Even though I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions. If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different. However, it seems like the issue is now closed.  

California Supreme Court denies admission to Stephen Glass (based on evidence of past dishonesty as a journalist and lack of support for argument on rehabilitation)

Since the end of 2011 I have been following the case of Stephen Glass, once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital" who was later exposed as a fraud who completely fabricated many of his articles, including some while he was a law student.  Glass graduated and passed the bar exams in New York and California, but he withdrew his application in New York after learning his admission would likely be denied.  His application in California was denied by the Committee of Bar Examiners (CBE) but the decision was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court just issued its opinion.  My first post on the case is available here.  Since then, I updated the story with more information and links here, here, and here.  You can read the briefs filed before the California Supreme Court here, and watch the oral argument here.

The case generated a very interesting debate (and the links above will bring you to articles that argue for and against admission).  As I understand it, the nature of the debate has two elements:  the question of whether the conduct supports the denial of admission to the profession and the question of whether regardless of the original conduct, whether the candidate's conduct since the original conduct shows he has "changed."  Or, in other words, whether his evidence of "rehabilitation" shows he can be trusted to be a lawyer.

As to the first question, the Court is very clear.  The opinion is available here. The first sentences of the Court's opinion give you a good hint: "Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications. He also carefully fabricated supporting materials to delude The New Republic‟s fact checkers."

Evidently, the Court's emphasis is on the calculated dishonesty involved in the original conduct, which, as the court emphasizes, "violated ethical strictures governing his profession."  (It seems to me this comment essentially says that if Glass could not be trusted to abide by the ethical rules of his profession, there is no reason to believe he should be trusted to abide by those of the legal profession.)  The Court also emphasized the fact that the "misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him."

The Court describes the conduct in great detail and eventually gets to its conclusion stating that "[h]onesty is absolutely fundamental in the practice of law; without it ...the profession is worse than valueless in the place it holds in the administration of justice....“[M]anifest dishonesty . . . provide[s] a reasonable basis for the conclusion that the applicant or attorney cannot be relied upon to fulfill the moral obligations incumbent upon members of the legal profession.”

This last sentence summarizes the basis for the Court's first conclusion: that evidence of past misconduct can be used to predict future conduct.  If the candidate has been dishonest to this extent in the past, it is reasonable to expect that he probably will continue to be dishonest in the future.

This brings us to the second question: whether there is enough evidence of rehabilitation to conclude that this expectation is wrong.  Glass, obviously argued the evidence was in his favor, but the Court disagreed.  The Court dismisses Glass' arguments that he should be considered to be rehabilitated enough to show he is worthy of the public's trust.  The court wrote about instances of dishonesty and disingenuousness occurring after Glass's exposure and described his testimony as hypocritical.

To decide the case, the Court looked to cases discussing the standards that apply to lawyers seeking reinstatement, concluding there is no difference in the underlying principles between those cases and the issue in this case.  According to the Court's analysis, because the State Bar presented evidence of moral turpitude, Glass had the burden to demonstrate his rehabilitation and good moral character, which is usually done by showing a "substantial period of exemplary conduct following the applicant's misdeeds.” This, the Court concluded, he did not do, stating that "much of Glass's energy since the end of his journalistic career seems to have been directed at advancing his own career and financial and emotional well-being."

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

Proposals to encourage more "innovation" in the practice of law

Carolyn Elefant, a blogger on issues that affect solo practitioners and small firms, has posted an interesting short comment on some obstacles solos and small firms face when it comes to innovation.  She argues, among other things, that "[i]t’s no coincidence that many of the innovations in the legal profession – the Axioms or RocketLawyers and matchmaking platforms are non-law firm entities that aren’t subject to ethics rules. As a result, these companies can push the ethics envelope without fear of serious repercussions. By contrast, if a solo or small firms experiment with a new approach to serving clients, like a virtual office space or a networking arrangement, they can lose their license or reputation if it turns out they made the wrong call (like the Connecticut solos who were prosecuted for ethics violations for participating in Total Attorneys’ lead gen program)."

In response she makes a few proposals including the adoption of "safe harbor within ethics rules to protect lawyers from disciplinary sanctions if they can demonstrate that they were diligent in researching the ethics rules associated with their action and made a reasonable decision based on their analysis."

You can read the full comment here.

What should be the proper discipline for dishonesty on a resume?

When discussing the inconsistencies among states when it comes to disciplinary sanctions, I always tell my students that what they need to remember is that regardless of the conduct "you always risk disbarment" (simply because you never know what the authorities are going to do).

Now, this leads me to the question of the day.  Should an attorney be disbarred for embellishing his resume?

The ABA Journal is reporting today that a former Paul Hastings partner in London has been disbarred for embellishing his resume. He originally faced a three-year suspension, but the United Kingdom's Bar Standards Board imposed disbarment instead.

Are the authorities stricter (or the standards higher) in the UK?  I don't know about that, but I don't think an attorney would be disbarred in the US for just one instance of dishonesty on a resume.  Over the past few years, I wrote about a case in California where an attorney was suspended for using an outdated resume (here), and a case in Illinois where the attorney was suspended for altering a law school transcript in an attempt to get a job (here).  In that second case, I argued the attorney should have been disbarred because the conduct was particularly egregious in my opinion (and was not limited to the issue with the transcript).  Yet in the end the attorney was suspended for three years.  That is a pretty severe sanction, but it is not disbarment.

CNN story about rates of suicide among lawyers

Here is link to a story by CNN.com on suicide among lawyers. It states, in part

One by one, state by state, bar associations say the tally is rising: Lawyers are killing themselves. The Centers for Disease Control and Prevention provided CNN with the latest available data on suicide deaths by profession. Lawyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population (adjusted for age).They come right behind dentists, pharmacists and physicians.
Lawyers are also prone to depression, which the American Psychological Association, among others, identified as the most likely trigger for suicide. Lawyers are 3.6 times more likely to suffer from depression than non-lawyers.
....
CNN's review of 50 state bar associations found eight associations so concerned about suicides that they took measures to stop the deadly pattern. California, Montana, Iowa, Mississippi, Florida, South Carolina and North Carolina added a "mental health" component to mandatory legal continuing education. Kentucky starts its annual conference on continuing education with a presentation on behaviors that increase the risk of suicide. So far, Kentucky has reached 7,000 lawyers.

In addition here is a short video on the story:


Thanks to the Legal Ethics Forum for the link.

Minimum sentences and prosecutorial discretion

Interesting short comment on how minimum sentencing laws result in more prosecutorial discretion and other dangerous effects on or criminal justice system.

What if a lawyer wanted to represent a Colorado-based business that sells marijuana in compliance with state law but in violation of federal law?

As discussed by Prof. Anita Bernstein at the Legal Ethics Forum: "A federal law, governing pretty much everyone, prohibits the possession and use of marijuana—even by medical patients with scripts from doctors. Some state laws defy this prohibition. DoJ has declared that, for now, it will look the other way from well-behaved adult users in those states. And every jurisdiction has a counterpart to Model Rule 1.2(d), which says lawyers who “counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal…” are subject to discipline." So can a lawyer ethically represent a Colorado-based business that sells marijuana in compliance with state law but in violation of federal law? Go here for the full discussion.

Yet another judge finds that government lawyers committed egregious misconduct

Just a few days ago I posted links to articles and editorials commenting on the many cases where judges have found prosecutorial misconduct.  This week the Blog of the Legal Times is reporting on yet another case involving misconduct of government lawyers.  In this case, a litigation that challenges how the Federal Bureau of Prisons treats inmates classified as terrorists, the judge stated that lawyers in the U.S. attorney's office in Washington committed "egregious misconduct" in their handling of discovery.  Go here for the full story.

Possible liability for referring a case to another attorney?

Just as with everything else, when an attorney refers a case to another attorney there is a duty to use reasonable care.  Here is a short review of the issue.

Ohio lawyers are not prohibited from soliciting potential clients via text messages

Is it ethical for attorney's to solicit clients by "texting"?  There has been some discussion on this recently and here is a post arguing against it. The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules. I think texting does result in more of an invasion of privacy than regular mail or e-mail. Also, it can result in a minimal financial burden on the person who receives the message. However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The issue was in the news recently because of an Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages. The Advisory Opinion is available here and discussed here.

Are law firms buying bogus likes and followers?

Links to the story over at the Legal Ethics Forum.

Complying with Brady, from the prosecutor's perspective

There has been a lot of discussion of prosecutorial misconduct (here and elsewhere) during the past few years and most of it relates to prosecutors' failing to disclose evidence as required by Brady v. Maryland.  And, as readers of this blog know, I have been extremely critical of prosecutors who violate their duties and of judges to let them get away with it.  But we have not heard much from the prosecutors' perspective; so I was glad to see Prosecutor's Discretion, a prosecutor's blog I like to follow, post a comment on that.  In it he describes how sometimes the issue is not so clear cut.  Sometimes, there are multiple issues to consider and the choices the prosecutor has to make are not as easy as they might seem.  You can read the comment here.

Washington Post joins NY Times and Los Angeles Times on prosecutorial misconduct

Just a few days ago I commented on recent developments related to prosecutorial misconduct including links to articles in the New York Times and the Los Angeles Times.  Today, Seeking Justice is announcing that the Washington Post has added its voice to the chorus.

NY Times editorial on programs designed to provide access to counsel to indigent defendants (and one response)

A few days ago, The New York Times published an editorial commenting on the need for states to provide alternatives to meet the needs of indigent defendants.  It discusses a model which uses "vouchers" that allow defendants to choose their representation.  Professor Stephen Gillers comments on that proposal here.

California Supreme Court rules that undocumented resident has a right to a law license

Since 2012, I have been following a case in California on whether an undocumented immigrant should be allowed to practice law.  Go here for links to many of those posts.  Here is a link to the oral argument before the California Supreme Court, soon after which the California legislature passed a bill on the issue which was promptly signed in to law.

Last week, the California Supreme Court issued its decision on the case holding that the candidate has the right to the law license.  I have not read the opinion, but according to reports, the court holds that the fact that practicing law by an undocumented immigrant might result in some violations of the law is not a bar to licensing.  For links and comments go to the Legal Ethics Forum and the Legal Profession Blog.

Chief judge of the 9th Circuit Court of Appeals warns of "epidemic" of Brady violations by the Justice Department

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. (Go here and scroll down for all my posts on the subject of prosecutorial misconduct.)  Last October, however, I posted a story (which I started with that same first sentence) about how "luckily, there is one court that is doing its part: the Court of Appeals for the Ninth Circuit."  In that story, I wrote about an oral argument (the story has a video of it) and a recent opinion.

Unfortunately, the latest on the subject from that court is not so encouraging. Last month it was reported that the court voted overwhelmingly to deny a rehearing in United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. Chief Judge Kozinski (joined by four other judges), however, issued a dissenting opinion opposing the denial of the rehearing. He begins the opinion with a sentiment I have been repeating for as long as I have been commenting on prosecutorial misconduct: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”  The dissenting Opinion is available here.

The case and the opinion by Kozinski have generated much commentary. For more information and comments go to:  Jonathan Turley, Seeking Justice, The Legal Ethics Forum, Seeking Justice, again, Huffington Post, The Los Angeles Times, and The New York Times,

The underlying problems in this case, like in so many others, deal with two related issues:  the extent to which a prosecutor has a duty to disclose material to the defendant and how to determine if a conviction should be reversed because of Brady violations.  Typically, courts will say that, under Brady, prosecutors have a duty to disclose evidence that is favorable and material.   Many jurisdictions, and the ABA, have adopted rules that impose a broader duty to disclose; others have denied that the rules impose a broader duty.

In this particular case, the Circuit Court found that the information in question was evidence favorable to the defendant and that it had not been turned over to the defendant's attorneys, but the court also determined that the evidence wasn't material.  And, having decided that the evidence wasn't material, the court did not decide whether the prosecutor engaged in misconduct.

To this, Kozinski reacted as follows:   "The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

This is a very important issue and I am going to take the chance here to predict that it will one of the hottest topics in Professional Responsibility circles this coming year.

Top Ten Stories of the Year

John Steele, of the Legal Ethics Forum, has posted has posted a great list of top stories of the year here.  It is definitely worth a look.  

There is also a "Top Stories List" on Canadian Professional Responsibility here, and one top story on the international front (here).

A few headlines

I am still away, but I am taking some time away from my time away between semesters to catch up with some of the headlines from the last few weeks:

The Supreme Court of Ohio rules that a Texas company with offices in Ohio engaged in the unauthorized practice of law when it prepared and filed a tax appeal and appeared before the Ohio Board of Tax Appeals.

Retired lawyer suspended for lack of e-mail address.  (Sounds odd, but if you read the story carefully you'll see the attorney was really disciplined for violating a specific court rule that requires a lawyer to provide an email address.  The more interesting question is whether that rule is warranted.)

Is it ethical for attorney's to solicit clients by "texting."  There has been some discussion on this recently and here is a post arguing against it.  The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules.  I think texting does result in more of an invasion of privacy than regular mail or e-mail.  Also, it can result in a minimal financial burden on the person who receives the message.  However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The Utah State Bar Ethics Advisory Committee recently issued a new opinion on "A Lawyer’s Options When a Client with Diminished Capacity Refuses to Act."   The opinion is available here.

Can lawyers advise marijuana growers in Colorado?  Lawyers are caught between the new state law that says marijuana is legal and federal law that still treats marijuana as an illegal drug.

Representatives from LinkedIn met with Florida Bar officials last month and outlined changes to the social media site that should help allay concerns raised by the Board of Governors and the Standing Committee on Advertising.

Attorney suspended for seeking sex with opposing counsel and having sex with client (in different case).

Lawyer prosecuted for an alleged ethical violation that occurred in the course of representing an attorney accused of an ethical violation.

Happy New Year!

I have been gone for weeks for our winter break, but I wanted to take a moment away from all the vacation family fun to wish everyone a great new year!

 

Thank you for reading and supporting the blog. I will continue to do my best to keep up and bring you news and commentary in the new year.

 

Happy New Year!!

Florida law firm files suit challenging constitutionality of Florida Bar’s 2013 advertising rules

For some reason, the Florida Bar seems to be intent in imposing the most excessive restrictions on attorney advertising. This is not entirely surprising since this is the same Bar organization that initiated the litigation that resulted in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), one of the worst attorney regulation decisions of all time, in which the Court validated regulation on speech because some might find it offensive.

Now comes news that a law firm has filed a law suit challenging the Florida Bar’s new effort to interpret a prohibition on “inherently misleading” statements to include a requirement that all communications by a lawyer be “objectively verifiable.” You can find a copy of the complaint here.  (via Legal Ethics Forum).

Max Kennerly has a comment on the lawsuit here. He argues that the Florida Bar's regulation bans lawyers from having opinions, saying "When I saw it, I had to double-check to see if it was a joke....[T]he Florida Bar precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” Lawyer Ethics Alerts Blog also has a comment here.

I agree the regulation in question should be challenged.  As we all know, the state can (and should) regulate statements that are misleading or false.  But the fact that a statement is an opinion does not make it, by itself, misleading.  This is the basis of the Florida Bar's conclusion: that an opinion is, by its very nature, misleading.  And that, I suggest, is not only wrong but also misguided.  Prospective clients looking for an attorney would be better informed if they know the attorney's opinions on matters that concern the prospective client's interests.  I hope the challenge to the rules is successful.

Fellowships for study of professional ethics at Auschwitz

FASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for a fellowship that uses the conduct of lawyers and judges in Nazi Germany as a launching point for an intensive two-week early summer program about contemporary legal ethics. Applications from all law students, regardless of what field of law they are interested in, are sought. Fellowships include an all-expense paid trip from New York to Berlin, Krakow, and Auschwitz where students will work with leading faculty to explore both legal history and the ethical issues facing lawyers today. All program costs, including international and European travel, lodging, and food, are covered. The 2014 program for FASPE Law will run from May 25 to June 5. Completed applications must be received by January 6, 2014. Candidates of all religious, ethnic, and cultural backgrounds are encouraged to apply. To apply or to learn more about FASPE, please go here.  If you have any questions, please contact Thorin R. Tritter, Managing Director of FASPE, at ttritter@FASPE.info.

Please complete this survey, it may help suggest changes to the disciplinary process in Georgia

Clark D. Cunningham, the Director of the National Institute for Teaching Ethics & Professionalism (NIFTEP) and Professor of Law and Ethics at Georgia State University College of Law has asked me to post this message:

A case in Atlanta that has caught the attention of the media this week opens a brief window of opportunity during which it may be possible to get an initiative going to  strengthen Georgia’s attorney discipline procedures. I am thinking of writing a letter to our state bar’s Committee on Disciplinary Rules and Proceedings recommending a number of changes. I would like to have as much comparative information about other states as possible when I write that letter. I have developed a very short on-line survey that would take less than 5 minutes to complete if the person is familiar with their own state’s disciplinary system. As you can see on the form, I offer to share the results.  Here is the link:  www.surveymonkey.com/s/DisciplinarySurvey  

Cordially,

Clark

As you will see from the survey it appears that Georgia has some unique rules.  Clark is trying to gather information on whether other jurisdictions have similar rules.  I completed the survey and it really does take less than five minutes to do so. 

The worst lawyer commercial I have ever seen!

There is a controversy brewing over a commercial for a law firm that was posted on YouTube recently.  The company that produced it says it was contacted by someone claiming to work for the firm and that this person approved the commercial.  The firm argues its Facebook account was hacked and that it has asked the advertising company to take it off the web.  The ad company has refused.  For now, the ad is still available here.  It speaks for itself.

Soon after the ad was discovered, Above the Law criticized what it called “racist imagery.” The ad company protested and PopeHat then responded in very strong terms (calling the ad company person "a racist asshole").  Raw Story, Lowering the Bar, FindLaw and the ABA Journal also have stories on the controversy.

DC's strange concept of moral turpitude

In Washington DC if an attorney's conduct is found to involve "moral turpitude" disbarment is automatic.  The problem is that there is no clear definition of the concept of moral turpitude and the boards and courts continue to make very strange rulings on it.  For example, a few years ago the Board on Professional Responsibility concluded that a lawyer's conviction for murdering his wife did not establish moral turpitude (here), but this was later reversed.  Then there is the case of a lawyer who lied, cheated and stole property from a store for personal gain.  He was convicted for it, yet the DC Court of Appeals found that the conduct did not involve moral turpitude - even if it could be considered to be a "serious crime."  I wrote a long comment on that case here.  And finally, there is the case in which an attorney who was convicted of felony traveling for the purpose of engaging in sex with a minor was found not to have engaged in conduct involving moral turpitude. According to an account of the case, the attorney had made a 12-year-old boy his sex slave for six years and was convicted and sentenced to 15 years behind bars.  My comment on that one is here.

But not all is hope is lost.  While holding a child as a sex slave is not moral turpitude, it has been decided that tampering with a witness constitutes moral turpitude (here). And today comes news that a new opinion of the DC Court of Appeals has found that a conviction for obstruction of justice constitutes moral turpitude per se.  The Legal Profession blog has more on the case, including a comment on it from the Huffington Post here.

I guess I just don't understand the concept of moral turpitude.  It would seem to me that it has to mean something broader than interference with the judicial process, which seems to be what the DC decisions are limiting it to.

Is the title "the King of Torts" unethical, or illegal?

Over the years, a number of lawyers have been known as "the King of Torts."  Dickie Scruggs, Melvin Belli, Joe Jamail, among others have been awarded the title (whether by themselves, other lawyers or the media), but noone took it too seriously.

Obviously, the title is just a nickname... but, just for fun, consider this:  Over at the Abnormal Use blog I found a story that mentions something called the Titles of Nobility Act of 1810 (“TONA”), which reads, in part, as follows: "If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, ... such person shall cease to be a citizen of the United States ...."

According to the story, TONA was proposed as the 13th Amendment to the Constitution and approved by by both the Senate and the House in 1810 but was never ratified by three-fourths of the states.  However, some have argued that the amendment became law upon the discovery of Virginia’s apparent ratification in 1819.  For more on this, go here.

New York starts program to provide public defenders for immigration proceedings

NPR is reporting that a new pilot program in New York City was launched earlier this month to provide public defenders to defendants facing deportation in immigration court (where the Constitution does not extend the right to court-appointed attorneys).  Go here for the story.


Thanks to the Legal Ethics Forum for the story.

New York City Bar issues report on the ethics of "cloud computing"

The question of whether it is ethical to use "the cloud" to store documents has generated a few ethics opinions.  I reported on the opinions from New Hampshire (here) and Florida (here).  Now, the NY City Bar Association has issued a new opinion.  Go here for the story and here for a copy of the report.

Thanks to the Legal Ethics Forum for the link.

Ethics lessons from fictional lawyers

Here is the link to an article on fictional lawyers, from movies and novels, and the ethical issues they faced.

Arizona adopts a revised version of Model Rule 3.8 rule on prosecutors duties

The newly adopted rule is available here.

Center for Prosecutor Integrity to create a registry of prosecutorial misconduct

The Center for Prosecutor Integrity has just issued this press release, announcing the the receipt of a grant to establish a Registry of Prosecutorial Misconduct.

A public defender's comments on prosecutor misconduct

A few minutes ago I posted a note on a recent case on prosecutorial misconduct.  I then found a comment on the case (and more general issues related to due process in our criminal justice system) over at A Public Defender's blog.  That post is available here.

Conviction reversed - but no sanctions imposed - for prosecutor's improper comments

The Legal Ethics Forum recently posted a link to a story in the Connecticut Law Tribune about a decision of the state's supreme court overturning a conviction because of a prosecutor's improper comments.  Specifically, the prosecutor claimed the prosecutor acted improperly by repeatedly asserting during her  closing argument that both the defendant and his lawyer were asking the jury to "condone child abuse," that the defendant's testimony was "coached," and that the defense strategy was a game of "smoke and mirrors."

The court's opinion is available here.  The court's analysis on the question of the improper comments starts on page 11.

This is an interesting question.  I am not too bothered by the "smoke and mirrors" comment.  Even though it is clear that a prosecutor is not allowed to express his or her opinion on the credibility of a witnesses, I think this comment is within the acceptable limits of rhetoric.  It is just a way to say that the defendant's evidence is weak and that the juror's should not be confused by it. 

The comment on "coached" testimony is a closer call because it does come close to being an opinion on the credibility of the witness and suggests unethical conduct of the defense attorney.  It does sound like the prosecutor is saying "I believe the witness was not telling the truth."  However, I am not sure the comment was quite that clear.  Obviously "coached" is a term that has negative connotations but it seems to me it is just a comment on the demeanor of the witness and the general credibility of the testimony.  If that was all there was, I am not sure I would have overturned the conviction.

The first comment (the one about condoning child abuse), though, is of a different nature.  First of all, although it sounds like a statement of fact, it also was really a statement of opinion, and that opinion was questionable.  Second, it was probably not based on the evidence.  Third, it was used to stir emotions,  And, lastly, it was a cheap shot at the defendant's lawyer.

Based on this one comment, I agree the conviction should have been reversed. The court's analysis is very good.  The only thing I would add is that I think the court should have imposed sanctions on the prosecutor.  

Former Texas DA (now a judge) disbarred in case of wrongful conviction after failure to disclose exculpatory evidence

In March of 2012, the TV show 60 Minutes had a segment on the controversy over the conduct of a former Texas prosecutor who was accused of failing to disclose exculpatory evidence which resulted in the wrongful conviction of an innocent man. The innocent man spent about 25 years in prison until he was exonerated thanks to DNA evidence.  That evidence also disclosed the identity of the actual killer in the case.

I first reported on the case here (where you can also watch the full 60 minutes segment).  As the investigation on the case progressed, I reported later (here) that an investigating judge had found probable cause against the former prosecutor.  (There are more links to other articles on the case there too.)

Now the case is back in the news because it was recently reported (also here) that the prosecutor was sentenced to ten days in jail - yes, you read correctly; ten days!  The sentence is actually for contempt of court for lying during the investigation of the incident.

Fortunately, that was not the only punishment.  The judge has been disbarred and removed from the bench.  It is too bad it took so long to get to this point. 

Update 1/7/2014:  The Huffington Post has a short comment on the case here.

On the relationship between prosecutors and the police.

About a week ago we discussed in class how a prosecutor must perform three different roles in one.  Prosecutors are part of the law enforcement team, they are also lawyers who litigate cases and they are "ministers of justice" who are supposed to make sure the rights of the accused are not violated. 

Right on cue, the Prosecutor's Discretion blog has jut published a short interesting post on the relationship between prosecutors and the police.  It starts like this: 

There is a difficult dance that we prosecutors perform with the police. One would think that we are on the same team and that it would be easy to get along with those on our team. I see officers on a daily basis and ... I have great respect for the job that they do.

But it is a different job than mine. A police officer ... has great discretion in how to conduct an investigation and whether to arrest a person, write a ticket, or come to an equitable resolution. The prosecutor's job is to do justice, and with that we are vested with prosecutorial discretion  ...

You can read the full post here.

How should you behave during court appearance

A few basic tips here.  My students will appreciate the first rule under "school rules."

San Jose mercury news article on Stephen Glass oral argument

Earlier I posted the video of the oral argument in the Stephen Glass case and a link to the briefs in the case. My take on the oral argument was that it did not go well for Glass. Apparently, the San Jose Mercury News agrees with me, concluding that "The California Supreme Court on Wednesday showed no signs of sympathy regarding Glass' bid for a license to practice law." You can read the article here.

Thanks to the Legal Ethics Forum for the link.

Pennsylvania Supreme Court announces revisions to rules of professional conduct.

The Pennsylvania Supreme Court has announced revisions to its Rules of Professional Conduct.  The Legal Profession blog has more information here.

Briefs in the Stephen Glass case

Earlier tonight I posted the video of the oral argument in the Stephen Glass case.  Here is a link to an article where you can find the briefs filed in the case. 

Thanks to the Legal Ethics Forum for the link.

California Supreme Court oral argument on Stephen Glass admission petition case

Earlier today, the California Supreme Court heard oral arguments on the petition for admission of Stephen Glass. The video appears below.

Stephen Glass was once thought of as one of “the most sought-after young reporter in the nation’s capital.” He was later exposed for having falsified many of the stories he wrote for important national magazines including some he wrote while attending law school. See my original comment on the case here.

Glass graduated and passed the bar exam in California but was denied admission. His application in California was denied by the Committee of Bar Examiners (CBE).This decision, however, was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court granted review.

The argument of the CBE is essentially that Glass' conduct shows disregard for honesty and trust and that he “has not established the requisite showing of rehabilitation." There is a lot of information on this case out there. If you want to read more before watching the oral argument, take a look at my previous posts where I wrote on the case and provided links to many comments about it here, here and here.

Here is the video of the oral argument. It is about an hour long. (The video should start right when the argument begins, but I noticed that in some browsers it starts earlier. If your version does not start when the argument starts, fast forward to about the 13 minute mark.)

As always, it is difficult to predict the result of a case from the oral argument, but if I had to guess, my guess is that the Court was not too sympathetic. The appellant's argument was not perfect and it did have some weaknesses - particularly the rebuttal - but I think the judges seemed more critical of Glass' attorney's argument.

ABA issues formal opinion on whether attorneys can participate in "deal of the day" programs like Groupon

Bar associations and other state authorities have been issuing opinions on whether it is permissible for lawyers to use pre-paid discount services like Groupon to advertise legal services and attract clients. The NY Bar Association has approved participating in Groupon (see here), as have North Carolina, South Carolina and Maryland (see here).  On the other hand, the Alabama State Disciplinary Commission has ruled attorneys can't use Groupon (see here).  The Indiana State Bar Association has ruled it is probably unethical (here).

The ABA Standing Committee on Ethics and Professional Responsibility had been working on an opinion on the subject for some time and it was finally released.  It is available here.  The summary reads, in part, as follows:

Deal-of-the-day or group-coupon marketing programs offer an alternative way to sell goods and services. Lawyers hoping to market legal services using these programs must comply with various Rules of Professional Conduct, including, but not limited to, rules governing fee sharing, advertising, competence, diligence, and the proper handling of legal fees. It is also incumbent upon the lawyer to determine whether conflicts of interest exist.

The opinion explains there are two different ways in which attorneys could try to use deal of the day services:

For a lawyer, the two options described above might be illustrated as follows. Assume a lawyer charges $200 per hour for legal services. The lawyer could sell a coupon for $25 that would entitle the bearer to buy up to five hours of legal services at a fifty-percent discount; in other words, the $25 would allow the bearer to pay only $100 per hour for up to five hours of legal services, potentially saving up to $500. This first option requires the coupon bearer to make additional payment to the lawyer commensurate with the number of hours actually used. Alternatively, the lawyer could sell a deal for $500 that would entitle the buyer to receive up to five hours of legal service (with a value of up to $1,000), but all of the money would be collected by the marketing organization, with no additional payment collected by the lawyer no matter how many of the five hours of legal services were actually used. For ease of reference, this opinion will refer to option one as a coupon deal and to option two as a prepaid deal.

With these two models in mind, the opinion concludes that coupon deals can be structured to comply with the Model Rules.  However, the opinion concludes there are numerous difficult issues associated with prepaid deals and, therefore, the Committee is less certain that prepaid deals can be structured to comply with all ethical and professional obligations under the Model Rules.

For comments on the opinion you can check out Lawyer Ethics Alert Blogs.

Is it misconduct for a lawyer to ignore rule against including a claim for a specific dollar amount in a complaint?

Eearlier this week the New York Daily News reported on a recently filed claim alleging that energy drink Red Bull contributed to the death of a 33 year old man.  The story's headline read: “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”    Claims that energy drinks can contribute to someone's death have been circulating for some time now, so the allegation is not new.  (For more on that go here.)
 
What is interesting (for the purposes of this blog) is the fact that the complaint specifically asks for $85 million in compensation.  This is interesting because the practice of asking for a specific dollar amount in a complaint has been banned in New York (where the case was filed) for 23 years.  And yet, as NY blogger Eric Turkewitz adds, "some lawyers still put that clause in. Why? There are only two possible reasons . . . : Either the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue." 

Eric's post is worth reading here.  He goes one to argue, correctly in my view, that the emphasis on the amount of the claim detracts from the seriousness of the issue.  The story now becomes one about how much money the plaintiff's lawyer wants instead of one about whether a product is in fact dangerous or whether the defendant should change the way it markets the product.

What lawyers put in online profiles versus what clients want in profiles

This chart was created by Matt Homman and there is a comment about it in Real Lawyers Have Blogs

So you want to be a prosecutor?

Go here for some good advice.

The "meet and greet" practice of law?

The "a public defender blog" has posted a story on the reality of practice of criminal defense in some courts.  In fact, this is (obviously) not an isolated incident -remember the story that the Miami public defender's office was rejecting cases because they did not have time to manage them?   In any case, the public defender story is about a case in which the defendant was assigned a public defender who met with the client for the first time the morning of his trial, which was going to be the attorney's first criminal trial in seven years. The attorney had about 12 hours to prepare for trial.  A public defender argues that a conviction under those circumstances violates the constitution.  And he has some strong words for the lawyer who claimed he was ready for the trial under those circumstances. You can read the full post here.

Lawyers Swarm to Ghost Blogging, But is it Ethical?

The Legal Talk Network has a 25 minute podcast on the issue of whether ghost blogging is ethical here (or here).

New case on the limits of proper argument

One of the topics I cover in my class is the notion of limits of proper argument.  I assign a series of cases that discuss whether it is proper for an attorney to cite the Bible in support of an argument when addressing the jury, or to ask the jury to "send a message" by reaching a certain verdict.  Now I have a new case to discuss the issue.  The Legal Profession Blog is reporting on a recent case called State of Montana v. Ugalde in which a dissenting judge would have reversed a conviction because of the prosecutor's closing argument. The case involved a prosecution related to injuries to an infant. At the end of the trial, the prosecutor began her closing argument with a first-person narrative from the perspective of the infant, relating the State's view of what happened as though the victim was testifying on her own behalf. During rebuttal, the prosecutor then told jurors that the infant was "speaking to you" and asked the jurors to "tell the victim that you heard him and that you find the defendant guilty. I agree with the dissenting judge. His view is consistent with the other cases on the subject. Aside from being a little creepy, the prosecutor's approach was improper. Essentially, she testified for the victim who was not subject to cross examination, she played to the emotions of the jury, and she asked the jurors to "send a message." Here is what the judge wrote:

. . . I believe the prosecutor's channeling the infant-victim in closing arguments denied Ugalde her constitutional right to a fair trial. The channeling was neither brief nor harmless. It was calculated to play on the emotions and sympathy of the jury. I.N. spoke to the jurors through Pierce, describing the assault, the surgeries, how his life is no longer the same, that he no longer can tell his mother he loved her, and that he can only speak three words. Pierce asserted that “[I.N.] was the only witness, besides the Defendant, to tell you what happened to him on June 11th of 2008 .” Pierce asked the jurors to tell I.N. that they heard him and to tell Ugalde that they know what happened that day. The evidence presented at trial concerning the impact upon the eight-month-old victim and the cause of his injuries was overwhelming. But that does not justify our overlooking a prosecutor's improper closing argument that was calculated to appeal to the jury's emotions, passion, and sympathy. This tactic undermined the fundamental fairness of the trial. I therefore would reverse for plain error and remand for a new trial.

Extra!: U.S. Attorney agrees to vacate conviction after thrashing by Ninth Circuit for prosecutor's misconduct

Last Saturday I posted a video in which the Court of Appeals for the Ninth Circuit severely criticized the conduct of a district attorney who based an argument on facts not in evidence.  At the end of the oral argument (by a different prosecutor) one of the judges suggested that the prosecutor go back home and watch the tape of the argument with the prosecutor in question and simply confess to the conduct and stop trying to justify it or explain it or claim it was harmless error.

Well, apparently they did just that, as Seeking Justice reports, "no doubt to avoid a scathing decision from the Court."

Here’s the government’s four paragraph motion to vacate the conviction and remand the case. Seeking Justice summarizes it as simply saying "We’ve all reviewed it, our prosecutor was wrong, and we will use the video to teach prosecutors the bounds of proper closing argument."

That is a good thing, I guess, and hopefully they will take it seriously in the future. 

More comments on prosecutorial misconduct: why do some courts protect the anonymity of prosecutors?

Here is a link to a recent article in the Huffington Post that discusses the fact that the names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct.

There's no formal rule precluding the publication of a prosecutor's name in an opinion.  Apparently, the practice is rooted in what some call "professional courtesy."  But I don't see why a prosecutor should deserve professional courtesy if they are found to have engaged in misconduct, particularly when other lawyers are not granted the same courtesy in published disciplinary decisions.   I just don't think there's a legitimate argument as to why prosecutors should get more protection from allegations of wrongdoing than other attorneys.

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

Book (p)review: Essential Qualities of The Professional Lawyer

Back in 2008 I wrote an article for a symposium on professionalism in which I tried to reduce the notion of professionalism to some basic elements and values.  It was a short article and I did not have the chance to expand on my ideas too much.  Plus, I wrote the article in Spanish...

But, don't worry!  If you are interested in this topic, The ABA Center for Professional Responsibility has published a new book called Essential Qualities of the Professional Lawyer, which takes on the same task I wrote about, and more.  Since I have not read all the essays yet, I can't really write a review of the book. So think of this as a pre-review (or is that a preview?).

The book is a collection of essays by many different authors on many different subjects, all based on the same underlying theme:  that there are some core tools that lawyers need to become authentic and successful professionals.  The topics covered include professionalism values, civility, proper use of computers and technology, merging professional and personal values, gender and bias issues, lawyering skills and professional conduct.

The essays vary in length and coverage and they are not meant to be read in any specific order.  In fact, I would suggest that you should not read the book from beginning to end as if you were reading a novel.  I would suggest you read a chapter or two, put the book down and come back to it some time later.  Take your time to read and think about the different issues over time.  I look forward to reading it this way.  It may take me a long time to finish, but there is no need to rush it.  I feel I may get more out of it that way.

Vote for innovative ideas at the Innovating Forum

Are you interested in new ideas on how to change and improve our justice system?  If so, take a look at the Innovating Justice Forum  of the Hague Institute for Internationalisation of Law.

One of those ideas comes from my friend and colleague David Wexler and I encourage you to take a look at it.  David's work originated the concept of "therapeutic jurisprudence" (or "TJ") which argues for the need for a new perspective to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.  Here is a short video in which he explains the concept.

Recently, David has been working with a US judge (Michael Jones ) and a Victoria, Australia magistrate (Pauline Spencer) on a new therapeutic jurisprudence project called "Integrating the Healing Approach to the Criminal Law." 

The project has been nominated by the Hague Institute for Internationalisation of Law Innovating Justice forum under the "Innovative Idea" category and you can read about and vote for it here. 

Illinois Supreme Court finds "advanced payment retainers" can't be used in divorce case

Back in 2007, in a case called Dowling v. Chicago Options Associates, the Illinois Supreme Court recognized something it called an “advance payment retainer” which would allow a client to give a lawyer money the client wanted to keep away from the client’s creditors. The idea behind the concept was to protect a client’s ability to pay for legal representation, but as applied in that particular case and as explained by the court, the concept makes no sense and inevitably results in a violation of other rules of professional conduct.

Surprisingly, however, even though it makes little sense, the concept of the advanced payment retainer had not been challenged before the court until this year. This new case (In re Marriage of Earlywine) involved a divorce where the husband asked his lawyer to keep a certain amount of money so that the husband would not have to contribute to pay for the wife’s legal representation as determined by a specific statute. The statute was created to level the playing field in divorce cases by requiring a spouse with access to independent funds to help the other spouse pay for representation.

In Earlywine, the husband did not want to share his funds with his wife who was indigent. In an attempt to prevent her from getting access to the money, the husband gave the money to his attorney as an advanced payment retainer.

The court did not overrule Dowling, however, and simply ruled that the use of an advance payment retainer to protect a client’s funds from the obligation to share under the domestic relations act undermines the purpose of the statute in leveling the playing field which would render the act a nullity. The court found that it was “clear from the attorney-client agreement that the advance payment retainer in this case was set up specifically to circumvent the “leveling of the playing field” rules set forth in the Act. To allow attorney fees to be shielded in this manner would directly undermine the policies set forth above and would strip the statute of its power. If we were to accept [the husband’s] argument, an economically advantaged spouse could obtain an unfair advantage in any dissolution case simply by stockpiling funds in an advance payment retainer held by his or her attorney.” 

This makes sense to me and I think the decision reached the correct result. You can read the full opinion here.  What the court failed to accept, however, is that the same thing could have been said about the conduct of the client in Dowling. Although the court reached the correct result in this case, it should have taken the chance to get rid of the problem it created with its decision in Dowling.

As it is, an advanced payment retainer refers to money that belongs to the attorney, even though it is not actually earned until the work is performed. How it can be earned and not earned at the same time is a mystery. And if it is owned by the attorney, but not earned and thus owed to the client if not used, how can the attorney deposit it in either the general account or the trust account without commingling?

When can a lawyer be sanctioned for criticism of judges?

The Indiana Disciplinary Commission recently recommended a one year suspension without automatic reinstatement for an attorney based on the content of private communications criticizing a judge. The case is now before the state's supreme court which should decide the sanction would be an unconstitutional interference with the attorney's freedom of speech. For more details on the case, go here.

In this case, the commission recommended the sanction for emails that the attorney sent to another attorney criticizing a judge for mishandling a case. Among other things, the attorney stated that that the judge “should be turned in to the disciplinary commission for how he handled this case.”

The commission apparently told the attorney he could forgo the possible disciplinary proceeding if he apologized for the comment but the attorney refused and decided to fight the charge instead. I applaud him for this decision because the commission is clearly acting unconstitutionally here. The attorney has the right to express his opinion about the judge and if that statement is what the commission is basing its position on, it does not have any valid basis for imposing sanctions. I hope the Indiana Supreme Court does the right thing here and sends the commission (and the judge) packing.

Ironically, apparently the commission has argued as an aggravating factor that the attorney "believes he is superior to the courts and the law.” Yet, it is the commission which apparently believes its power is superior to the attorney's first amendment protected right to express his opinion.

This is not a case where the attorney made assertions of fact about the judge (like the recently reported case where it was alleged that an attorney argued a judge was a pedophile).  Here the attorney expressed his opinion about the competence of the judge.  This type of expression is protected speech.

Governor signs bill that would allow undocumented alien to be admitted to the bar in California

I previously reported that the California legislature approved a bill that would allow undocumented aliens to join the California bar (see here and go here for more on the case that prompted the bill). Now comes news that Governor Jerry Brown has signed the bill. Go to At the Lectern for more information. Thanks to the Legal Ethics Forum for the link.

 

Ninth Circuit Court of Appeals on how to handle prosecutorial misconduct

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. Often courts do not do enough to discourage it or to impose sanctions for it. Luckily, there is one court that is doing its part.  This week I saw two different stories on prosecutorial misconduct, both from the Court of Appeals for the Ninth Circuit.

The first one involved an oral argument (you can see the video appears below).  Here the court was reviewing a case in which the court denied the defendant a chance to reply to an argument by the DA in which the DA made arguments based on facts not in evidence.  The oral argument on behalf of the government is worth watching.  The judges who participated were clearly bothered by the prosecutor's conduct and it seems pretty clear the conviction will be reversed because of it.  The implication is that the prosecutor purposely decided to wait until rebuttal to make a comment based on facts not in evidence because the defendant would not be able to reply to the comment. The court then denied the defendant three minutes for a rebuttal to the prosecutor's statement giving rise to the question on appeal.

The government's argument begins at the 26 minute mark. The argument starts poorly for the government and gets worse.  At the 44 minute mark, one of the judges reduces the issue clearly to the bottom line: trials should be fair and prosecutorial misconduct can't be tolerated. Interestingly, he then goes on to talk about some reasons why there is too much prosecutorial misconduct: too much prosecutorial discretion. Now, that's a different issue we could talk about another day!  Take a look at the specific comment starting at minute 44 of the video (or here).

UPDATE:  A few days later the US Attorneys Office filed a motion to vacate the conviction.  Go here for the update.

Keep reading below for news on the second story I mentioned.



The second story I saw this week about of the Ninth Circuit was this:  "In another sign that the Ninth Circuit is leading the way in holding prosecutors to their Constitutional obligations while insuring the Constitutional rights of defendants, a panel earlier this month, in Dow v. Virga, No. 11-17678 (Sept. 5 2013 9th Cir.), granted habeas relief where the California prosecutor, Deputy District Attorney Jennifer Ow of San Mateo County, knowingly elicited and then failed to correct false testimon..."  For more commentary see Seeking Justice.  For a copy of the opinion go here.