What do you have to do to get disbarred in Alabama?

I spend some time in class looking at the disparities in sanctions imposed for different types of offenses. Inevitably, we conclude that there is little consistency and, thus, I advise my students to remember that no matter what the conduct is, if it is improper a lawyer "always risks disbarment."

Here is a new good example to illustrate the disparity among jurisdictions. In this case, two different jurisdictions imposed discipline for the same conduct. The conduct included entering into a fee agreement that allowed the client a $200 credit for each time she had sex with him and a $400 credit if she arranged for other females to have sex with him.

For this, Alabama imposed a suspension of fifteen months. In a second case of misconduct, Alabama imposed four month suspension. In contrast, the proceedign in Florida involved these two same claims and a third one (misuse of client's funds) and the Florida Supreme Court disbarred the attorney. Which state do you think got it right?

Disciplinary procedure confidentiality rule declared unconstitutional

Louisiana Supreme Court has ruled that confidentiality rule that blocks any participant in an attorney disciplinary proceeding from publicly discussing the matter until formal charges are filed violates the First Amendment. The case is called In re Warner (available here.) Writing for the court, Justice Jeffrey P. Victory concluded that the confidentiality rule—which the court itself adopted in 1990—is a content-based prior restraint on speech. It cannot survive strict scrutiny, the court added, because the rule is not narrowly tailored to serve the state's interests.

Sanctions for deceptive firm name

Earlier this month the Supreme Court of Ohio ruled that a sole practitioner violated numerous ethics rules by using misleading firm names that incorrectly indicated he was involved in a partnership with another attorney and employed “associates.” The case is called Disciplinary Counsel v. McCord and is available here.

The Court held that lawyer acted deceptively when he improperly held himself out as a member of entities named “McCord, Pryor & Associates,” “McCord, Pryor & Associates Co., L.P.A.,” and “McCord & Associates.” Pryor was another lawyer who had an office in the same building as McCord but they did not operate under any recognizable legal structure, and they had no agreement to share profit and losses. They had separate clients, separate IOLTA accounts and separate fee income. They shared attorneys' fees only on cases they worked on together, never on their separate cases. At the time McCord created the entity he called "McCord, Pryor & Associates Co., LPA" Pryor had been dead for more than two years. McCord admitted that he formed this entity solely to thwart his ex-wife's attempts to garnish his bank accounts to pay for his outstanding child-support obligations. The Court also found that it was improper to use the words "and Associates" in a firm name when the attorney did not, in fact employ any associates.

On these facts, the Court agreed with the board that McCord committed the following rules violations:

• practiced under a misleading firm name (Rule 7.5(a) and DR 2-102(B));
• stated or implied that he practiced in a partnership or other organization when that was not so (Rule 7.5(d) and DR 2-102(C));
• committed an illegal act that reflected adversely on his honesty or trustworthiness (Rule 8.4(b)); and
• engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c) and DR 1-102(A)(4)), conduct prejudicial to the administration of justice (Rule 8.4(d)), and conduct adversely reflecting on his fitness to practice law (Rule 8.4(h)).

Yet another case of prosecutorial misconduct

Not too long ago I posted some comments on recent cases involving improper arguments by prosecutors (see here and here. Also, see here for other comments on cases involving other types of prosecutorial misconduct.)

Here is another case regarding improper arguments by a prosecutor. In this case, the Florida Third District Court of Appeal concluded that "while we find that the statements were improper, we affirm the defendant's convictions because, based on the overwhelming evidence of guilt, the error was harmless."

The Court concluded that "we again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence. . . . Additionally, closing arguments “must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.” . . . “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”"

In a "reluctant concurring opinion" Judge Ramirez wrote that "Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter. I reluctantly join today’s decision, mindful that I may be promoting the notion that winning is more important than giving defendants a fair trial. But given the overwhelming evidence of Williams’ guilt, I have to agree that under State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), “there is no reasonable possibility that the error contributed to the conviction.”

But here is a question for all the judges: if they all agree that the prosecutor engaged in improper conduct, and that the conduct requires the court to remind lawyers that if they don't understand their roles "they should not be members of the Florida Bar", how come they do not suggest imposing discipline in this case?

The opinion is available here.

Update on Supreme Court case re prosecutor immunity

A few days ago I posted a note on a case called Pottawattamie County v. Harrington which raises the issue of whether prosecutors should be immune from lawsuits for procuring false evidence in a criminal investigation and then using it at trial. The PopTort blog posted a comment on the case today which is available here.

Update on the case of the lawyer who altered law school transcript

A few days ago I reported on the case of a lawyer who was disciplined for, among other things having altered grades in a law school transcript in other to get a job. The ABA Journal.com is reporting today that the chief counsel for the Illinois agency that oversees lawyer discipline says the lawyer deserves to be disbarred, and he will appeal a recommendation for a lesser punishment. Law.com has also published a story on this here.

Different view on what constitutes business transaction with client

Model Rule 1.8 (and its state equivalents) do not ban a lawyer from engaging in business transactions with clients. However, it is clear this is allowed subject to many limitations. Today, a disciplinary Board in Colorado has decided that a lawyer is subject to sanctions because he wife was involved with a business transaction with one of the lawyer's clients. The Presiding Disciplinary Judge held that the lawyer negligently failed to terminate an attorney-client relationship when he learned about his wife's business transaction with the client. The Judge concluded this meant the lawyer effectively entered into a business transaction with his client without the appropriate disclosures in violation of Colo. RPCs 1.16(a), 1.8(a) and 5.3(b). The case is called People v. Montoya.

Thanks to Mike Frisch of The Legal Profession Blog for the information.

Another wake up call for students: conduct while in law school will come back to haunt you

An Illinois Hearing Board has recommended a three year suspension in a case involving an attorney who had failed to disclose information in his admission application to the University of Chicago Law School, was accused of plagiarism while in law school, altered his law school transcript (gave himself better grades in 20 courses!) to obtain employment and failed to disclose that conduct in the bar admission process. The opinion is available here.

UPDATE (April 28):  The lawyer is now facing disbarment.  Go here.

UPDATE (January 2010):  The Illinois review board recommended one and a half year suspension, which I criticize here.

UPDATE (June 3, 2010):  The IL Supreme Court rejects the Board's recommendation; imposes a 3 year suspension instead.  Go here.

Should a lawyer be suspended from practice for driving too fast?

Here is a new case that involves the often debated issue of whether an attorney should be sanctioned for conduct not related to the practice of law. In this case, the lawyer was involved in three incidents involving speeding violations--one of them for driving 140 mph in a 70 zone. In another traffic stop the police found marijuana in his car but the charges were later dismissed. Based on these facts, the lawyer agreed to a four month suspension.

The marijuana possession is clearly an indication that there may be a more serious problem behind the conduct, but for the sake of argument, let's assume the only issue was the traffic violations. Assume you have a lawyer who is stopped for driving 140 mph in a 70 mph zone and assume he or she has had numerous traffic violations for speeding. Should that alone justify imposing sanctions? What if the person is a candidtate for admission; should that conduct be considered in determining whether the candidate should be admitted?

Thanks to the Legal Profession Blog for the information.

How not to practice law: forge the judge's signature

The Legal Profession Blog is reporting today on a case out of Ohio in which a lawyer forged the signature of a judge on a draft judgment entry granting his client occupational driving privileges after the court had rejected the client's request. The lawyer claimed that he had signed the judge’s name on the rejected entry to show his client “what an approved occupational driving entry would look like” and then let the client keep the forged document.

In a 5-2 per curiam decision, the Supreme Court of Ohio found the lawyer's testimony “simply not believable” and concluded that the lawyer had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and illegal conduct adversely reflecting on a lawyer’s honesty or trustworthiness.

Based on these facts, the Court suspended the lawyer for one year. Do you think that was too lenient?

The court's decision is linked here.

Problems with criminal justice system

There is a lot of literature out there criticizing our criminal justice system for, among other things, not doing enough to protect the right to counsel and because some judges don't seem to care about the quality of representation provided bylawyers appointed to represent indigent defendants.

In a very ironic twist, today, the ABA Journal.com is reporting that Texas, the same state that gave us the famous sleeping lawyer case and the judge who closed the courthouse to prevent a last minute capital case appeal, should be criticized for rewarding the work of appointed capital case appellate lawyers.

Wait; that does not make sense, does it? We criticize the system because it does not reward the lawyers for their work, and now we are criticizing it because it does?

The problem is that what the article criticizes is the lack of oversight over the quality of representation. Lawyers are getting paid regardless of whether they do the work and, apparently, some are just not doing the work at all.

The story comes from the Houston Chronicle, which is reporting that Texas lawyers who have repeatedly missed filing deadlines in death-row appeals are not only being paid for their work but are allowed to represent inmates in other capital cases. The article mentions a few lawyers by name and states that only one of the lawyers the newspaper found to have repeatedly missed death row deadlines has faced fines or been forced to forgo fees by judges.

For more details about which lawyers reportedly have filed late and the excuses they offered for their tardiness, read the full article in the Chronicle.

How not to practice law: ask for stolen property as payment for your services

Here is another entry into our list of ways not to practice law: offer to exchange legal services for stolen property. Story here.

Supreme Court to Consider Prosecutor Immunity for Using False Testimony

Debra Cassens Weiss of the ABAJournal.com reports that the U.S. Supreme Court has decided to hear a case involving prosecutor immunity from lawsuits for procuring false evidence in a criminal investigation and then using it at trial.

According to the Supreme Court Blog, the case (Pottawattamie County v. Harrington) is "a significant new test case on prosecutors’ immunity to damage lawsuits for the way they conduct criminal investigations and then prosecute the cases in court."

The case was brought by two black teens imprisoned for 25 years after they were convicted of killing a retired, white police officer, the Des Moines Register reports. In their suit, the plaintiffs claim prosecutors coached witnesses to lie and concealed evidence. The case involves a distinction between absolute immunity, conferred for prosecutor errors during trial, and limited immunity that applies during the investigative phase of a case.

The implications of the case depend on your point of view, according to the Des Moines Register. “It either would prevent those who are wrongly convicted of crimes by deceitful prosecutors from recovering damages through civil suits, or it would put prosecutors in a weakened position, based on the fear of having to suffer for mistakes made while fulfilling their duty to protect the public."

Two thirds of Americans support legal aid for the poor

Two-thirds of Americans polled by the ABA support federal funding to help Americans who need legal assistance. Story here.

NY denies admission to candidate because of failure to pay student loans.

A few days ago I posted about a lawyer who was disbarred for not paying student loans. Today, the ABA Journal.com is reporting that the Appellate Division of the New York Supreme Court has refused to admit an applicant on character and fitness grounds, even though he passed the state bar in February 2008 because he has delinquent student loans dating back to 1985. The decision is available here. Full story here.

Illinois Opinion Adopts ABA View on Contact With Current Employees of Corporate Party

Illinois Rule of Professional Conduct 4.2 generally prohibits a lawyer who is representing a client from dealing directly with others who have their own counsel in the matter. However, the text of the rule does not indicate which employees of a corporation are considered to be represented for purposes of applying the rule.

A 1984 Illinois appellate court decision held that the anti-contact rule, then codified as DR 7-104, should be construed to prevent direct communications with persons in a corporation's “control group,” consisting of its top decision-makers and top advisors.

In a new opinion, the Illinois State Bar Association's Committee on Professional Ethics, however, has repudiated the narrow “control group test” for communications with current constituents in favor of the ABA's broader three-part standard (Op. 09-01, 1/09).

Endorsing the commentary to Model Rule 4.2, the opinion advises that three categories of current employees are off-limits for direct talks: those whose job brings them into regular contact with corporate counsel; those who have authority to obligate the entity in the matter; and those whose conduct in the matter is imputable to the company.

Following a long held view on a similar issue, however, the Committee reiterated that former employees of a represented party are fair game for informal interviews.

For more information go to this article in the ABA/BNA Lawyers' Manual on Professional Conduct: 25 Law. Man. Prof. Conduct 194.

Court holds that a lawyer's ability to pay must be considered in fashioning a monetary sanction

I have long been a proponent that sanctions must mean something. Mere slaps on the wrist do more harm than good. See here, for example. When it comes to monetary sanctions for attorney misconduct during discovery - which I have also argued is probably the most common yet least punished kind of attorney misconduct - I think the sanctions should be directed at the attorney - not the client and that they should be severe enough to cause the attorney to think twice about engaging in similar conduct in the future. How high the sanction should be to have this effect, however, I guess depends on the facts of the case.

One of these facts, according to the U.S. Court of Appeals for the Federal Circuit should be the lawyer's ability to pay. In ClearValue Inc. v. Pearl River Polymers Inc., (available here), the court threw out a monetary sanction that had been levied against an attorney for failing to turn over test results considered by a testifying expert. The sanction amounted to more than four times the lawyer's net annual income.

For more on this story check out this article in the ABA/BNA Lawyers' Manual on Professional Conduct. If you need a subscription to access the link, here is the actual cite: 25 Law. Man. Prof. Conduct 192.

More training for prosecutors

Attorney General Eric Holder Jr. said on Tuesday he would require additional training for prosecutors to reinforce their understanding of rules that govern discovery in criminal cases. Full story here.

Want to get disbarred? Go rob a bank

Back in January I reported on the proposed disbarrment of an attorney for having engaged in bank robbery (duh!). Yesterday, the Supreme Court of Louisiana affirmed. The opinion is available here.

Thanks to Legal Profession Blog for the cite.

Perry Mason Arrested For Unauthorized Practice Of Law

A 43 year old man going by the name Perry Mason, was arrested in Houston for practicing law without a license. Full story (very short) here.

I am assuming everyone gets the irony here, but maybe I shouldn't. For those readers who don't... Perry Mason is the name of the lead character (a lawyer) in a series of mystery novels by Erle Stanley Garner, later portrayed in movies and TV by actor Raymond Burr. The typical plot of a Perry Mason novel involves Mason's efforts to represent a client accused of murders he or she did not commit by disocovering the real murderer.

Thanks to the Faculty Lounge blog for the story.

Lawyer disbarred for failing to pay student loans

Here is another wake up call for our students: pay your loans!

The National Law Journal is reporting today that the Texas Court of Appeals has revoked the license of a Houston lawyer who failed to comply with a plan to repay student loans and other personal debts. The court said the laywer's conduct showed he did not have the trustworthiness needed to represent clients.

I am not sure how common it is for a lawyer already in practice to be disciplined for failing to pay his debts, but I do know that it is very common for Character and Fitness committees to delay admission to candidates who have accumulated a high level of debt when seeking admission to the bar. The Committees often want to interview those candidates to make sure the candidates understand their obligations and to get some assurance that the candidate will have the ability to pay the loans. With the rising costs of legal education and the bad economy -- which means not very encouraging job prospects for so many graduates -- this could become a real problem for many.

New report on prosecutorial misconduct

The Justice Project has released a report on prosecutorial misconduct. The report is available here. It starts: "Prosecutors are arguably the most powerful figures in the American criminal justice system. Prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what charges, plea bargains, and sentences a criminal defendant will face; and they have complete control over what evidence will be disclosed to the defense during discovery. The decisions of prosecutors have far-reaching consequences on defendants, victims, their respective families, and the general public. These broad powers reflect the prosecution’s unique
role in the criminal justice system as defined by the Supreme Court: “not that it shall win a case, but that justice shall be done.” The role of the prosecutor is not just one of an advocate, but rather an “administrator of justice” whose ultimate goal is to protect the innocent, convict the guilty, and guard the rights of the accused. Prosecutors—unlike defense attorneys—do not advocate for a single individual; they advocate for a just outcome. Given the special duties of prosecutors and the broad power they exercise in the criminal justice system, it is critically important that prosecutors conduct themselves responsibly and ethically."

Thanks to the Legal Profession Blog for the cite.

Another example of how not to practice law: be rude to the judge's clerk

The ABA Journal.com is reporting today that the New Orleans-based 5th U.S. Circuit Court of Appeals has upheld the punishment barring lawyer R. Michael Moity Jr. from practice in the federal court for one year for displaying "severe disrespect to the court by the anger and harsh tone,” of a conversation with a judge's clerk. The lawyer followed that with "lack of candor in sworn testimony when the very serious matter of a contempt hearing was held.” The misrepresentations regarded a prior state court contempt hearing in which Moity was ordered to undergo ethics training, but failed to comply with the initial punishment. The opinion is available here.

Possible changes to admission (and readmission) rules in Florida

The ABA Journal.com is reporting today that a report by a group reviewing Florida bar admission standards has called for a number of changes, including a permanent bar on readmission for any lawyer who is convicted of a felony. The commission also recommended better supervision of those conditionally readmitted because of prior drug, alcohol or mental health issues, and extending the maximum amount of time that a Florida lawyer can be suspended from practice from three years to five years.

For the full story go here: Florida Bar News.

Update on problems with the new Model Rule 1.10

About a month ago, I posted a note on the fact that the ABA made a pretty major mistake in drafting the recently approved amendment to Model Rule 1.10. The Legal Ethics Forum is now reporting that the ABA Rules Committee has rejected a request by the ABA's Standing Committee on Ethics and Professional Responsibility for a housekeeping amendment to fix the problem (by making it clear that the screening provision applies only to laterally hired attorneys). That is crazy! The rule can still be fixed but it will have to go back to the ABA's House of Delegates in August, where the correction would have to be formally adopted by the House. If that does not happen, we will end up with a very problematic rule that will allow firms to purposely represent clients with concurrent conflicts of interest.

To see my posts on the process of approval of the new Model Rule 1.10 click here.

Another example of how not to practice law: don't proofread anything before you file it in court

Irked by a Wisconsin lawyer's failure to proofread his pleadings, among other errors, a state appeals court has suggested that the lawyer should go get help with his legal writing and fined him $500 for violating basic rules of appellate practice. In a report on the story in the ABAJournal.com, the attorney blames his staff for his incoherent pleading and claims that everyone makes mistakes. At least he admitted he should have caught the mistakes. My guess is this would have been easy if he had read the document before filing it. This is another example of how not to practice law.

Federal prosecutorial misconduct

In a strongly worded, 50-page opinion (available here), U.S. District Judge Alan S. Gold has reprimanded federal prosecutors and ordered the U.S. government to pay a defendant more than $600,000, saying members of the defendant's legal team had been secretly recorded in a questionable witness-tampering investigation. The judge also criticized the prosecutors for failing turned over to the defense the information and for not informing the fact that two witnesses were cooperating with the government. The judge stated that these events "are profoundly disturbing'' and that they "raise troubling issues about the integrity of those who wield enormous power over the people they prosecute.''

Full story here.

When should the judge take action regarding prosecutorial comments?

The North Carolina Court of Appeals recently affirmed a criminal conviction in a murder case, rejecting the contention that the trial judge failed to intervene in the prosecutor's closing argument. The defendant argued that the trial court erred by failing to intervene during the prosecutor's closing remarks, but the Court of Appeals found that the remarks were not grossly improper. For this reason it concluded that even though the lower court did not do anything, the remarks did not rise to the level of prejudice that would warrant a new trial.

New York City Public Defenders’ Caseloads to Be Capped

A provision in New York’s $131 billion state budget bill passed last week calls for a cap on the number of criminal cases each New York City court-appointed lawyer can handle. For more on the story go here. This is a good thing; but only if the budget also provides for more attorneys. Otherwise, what you end up with is the same number of attorneys handling fewer cases and more defendants lacking representation forcing a very bad choice: what's better? defendants getting inadequate representation because their lawyers have too much work, or defendants not getting representation at all because there are no lawyers available

Two N.J. Judges Face Ethics Charges Over Derogatory Comments From Bench

Two New Jersey trial judges are in hot water for belittling litigants with discourteous, undignified and discriminatory remarks from the bench. In complaints [available here and here], made public Monday, the Advisory Committee on Judicial Conduct accuses the judges of derogatory comments touching on litigants' alienage, ethnicity, race, honesty, language ability or physical ailments. The judges are charged, among other things, with creating an appearance of racial or ethnic bias. Fore more on this story go here.

Supreme Court to consider whether fees can be enhanced based on quality of representation

On Monday, the U.S. Supreme Court agreed to consider whether a fee awarded under a federal fee-shifting statute can ever be enhanced based solely on the quality of the lawyers' performance and the result they obtained. For more on this story go here.

More prosecutorial misconduct alleged

The Justice Department is once again being threatened with contempt of court after United States District Court Judge Emmet Sullivan found that they withheld evidence from the defense that a witness in a “significant” number of cases was mentally disturbed. Judge Sullivan found that the testimony of the detainee was unreliable, could be challenged in other cases, and could be the basis for a possible contempt order against the government. Full story here.

Prosecutorial misconduct; limits of proper argument

There appears to be an emerging trend of bar prosecutions against prosecutors -- which is definitely a good thing, by the way. Here is another example of prosecutorial misconduct, as reported by Mike Frisch from Legal Profession Blog.

An Arizona hearing officer recently recommended a 30 day suspension of a deputy county attorney for misconduct in a criminal case. The hearing officer found that "it is particularly troubling that [the] conduct began in opening statement and continued through rebuttal argument." The prosecutor had "carefully considered and deliberately chose to engage in the conduct at issue here. The repeated improper argument in opening statement, even after being admonished by the court, and the improper [closing] argument of the burden of proof were carefully calculated 'bookends' to [his conduct of the...trial." The prosecutor, among other things, put improper evidence before the jury, asked improper questions about inadmissible prior crimes, misrepresented DNA and other evidence, implied that incriminating evidence had been withheld and asserted personal knowledge of the facts by saying "we know" and "we can prove" in his opening statement.

On the relation between the rules of professional conduct and the concept of duty

Most states' rules of professional conduct state that they are not meant to illustrate duties in tort law, but that many (perhaps most) courts ignore this in the sense that they look at the rules as illustrations of proper conduct. In a new opinion from the Kansas supreme court, the court attempts to clarify the relation between the rules of ethical conduct and the concept of duty by stating that the rules of professional conduct do not create or recognize a claim in tort: "An attorney's violation of the ethics rules cannot create a cause of action to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action." The opinion is available here.

Thanks to the Legal Profession blog for the information.

Ineffective assistance of counsel in criminal cases

Here is a link to a comment by Prof. Monroe Freedman on the appalling situation of ineffective assistance of counsel that so many indigent criminal defendants have to deal with in the US. It starts: "The young lawyer who resigned from the Walton County Public Defender’s office because she was not able to give her client’s the effective assistance of counsel, is unquestionably a hero. Unfortunately, she is also guilty of serious and sustained unethical conduct, as are her colleagues in the office, the supervisors, and the judges who presided over her cases. . . . As a result, she and her colleagues repeatedly assisted clients to plead guilty without doing any of the investigation or legal analysis that ethical rules and the Constitution require."

Consumer agency sues over Florida's rules on advertising

Public Citizen, a national consumer advocacy agency, has filed a lawsuit against The Florida Bar challenging the constitutionality of its ban on client testimonials in attorney advertising. Full story here.

Attorney ordered to return fees for violation of court order

A couple of months ago I posted a note about a case where, after a judge ordered a lawyer off a case and banned from getting any fees (because he had been caught bribing a witness), the lawyer entered into a secret agreement to get paid anyway. Today, Law.com is reporting here that the lawyer has been ordered to return the $450,000 he collected in fees through the secret deal.

Article about in house counsel conviction

Here is a link to an article that discusses the indictment, trial, conviction, and sentencing of Berkeley Nutraceuticals’ former in-house counsel Paul Kellogg. Mr. Kellogg’s conviction arose out of two distinct series of events – one that the government alleged was designed to cover up an FDA violation, and another that the government alleged was designed to evade the Federal Trade Commission (“FTC”). The article reminds us that as in-house counsel, the line between advising on legal matters and participating in business decisions can get blurred, but attorneys need to know their proper role. In this case, the attorney crossed the line and it earned him a conviction. The full article can be found here.

Thanks to the FDA Blog for the inormation.

BNA Lawyers' Manual article on Candor to the Tribunal

The most recent ABA/BNA Lawyers' Manual on Professional Responsibility has a good article summarizing the state of the law related to an attorneys' duty of candor to the tribunal. It discusses the following topics. among others:

False Factual Statements
Immaterial Statements
Omissions as Misrepresentations
Limits to the Duty to Disclose
False Statements of Law
The Duty to Correct False Statement
The Duty not to offer False Evidence
Evidence Believed to Be False
The Duty to Disclose Adverse Legal Authority
Duties During Ex Parte Proceedings
Duties related to False Evidence Already Offered
The Duration of the Candor Obligation

The article can be found here, although I am not sure if the link will work if you don't have a subscription to BNA. If it doesn't, look for the article with this citation: 25 Law. Man. Prof. Conduct 174.

‘Reverse’ Contingent Fees Are Allowed in DC

The District of Columbia bar's ethics committee issued an opinion this month that concludes that attorneys may charge a reverse contingent fee, based on how much the lawyer saves the client from having to pay a claimant, so long as the total amount is reasonable and counsel makes sure the client fully understands the risks and advantages before consenting to the arrangement. A majority of the committee said that although it is best for the lawyer to put in writing exactly how the sums and percentages will be computed when establishing the fee amount, a detailed written analysis is not mandated under the professional conduct rules. Three dissenting members disagreed, arguing that unsophisticated clients—and impartial reviewers seeking to settle subsequent fee disputes—need a written statement disclosing how the figures were calculated in order to discern whether the amount is reasonable. The opinion is available here.

Attorney who became prominent for provocative ad campaign and nude photos is now suing Playboy

Way back when I started this blog, I posted a photo that started a big controversy over advertising in Chicago. It depicted the semi nude bodies of a man and a woman and stated "life's short. Get a divorce." The ad campaign brought prominence to Chicago divorce attorney, Corri Fetman, who soon thereafter went on to pose nude for Playboy magazine. She also began to publish a regular column for the magazine. Actually, I don't really know which happened first -the posing or the publishing, but, in any case, she began a working relationship with the magazine. Now Fetman is suing Playboy alleging that an executive sexually harassed her before dropping her column from the magazine.

Full story here and here.

No duty to referring attorney

Here is an interesting case that discusses an issue I had never seen before.An attorney, representing a plaintiff in a medical malpractice action, referred the matter to another attorney. The attorneys and the client agreed that the attorneys would represent the client as co-counsel, with the attorney to whom the matter was referred having primary responsibility for representing the client, and the referring attorney rendering services if requested by the other attorney. The attorneys agreed to split any contingency fee 50-50. Ultimately, the client settled the claim, on advice of the attorney to whom the matter had been referred, for less than anticipated by the referring counsel. Referring counsel then sued co-counsel (the one to whom he had referred the case in the first place), asserting negligence, fraud, breach of fiduciary duty, intentional interference with contract, and breach of contract. The Court held that defendant co-counsel owed no tort duty to referring counsel, co-counsel fulfilled the contractual obligation between counsel, and co-counsel could not tortiouslyinterfere with a contract to which co-counsel was a party.

The opinion can be found here.

Thanks to LegalProfession Blog for the information.

Judge disqualified after sharp exchange with attorney

Prof. Jonathan Turley reports today about a case in which the Eighth Circuit Court of Appeals which removed Judge Dean Whipple of the Western District in Kansas City after the judge insists that he was pushed over the edge by a lawyer's conduct.

Apparently, the judge had ordered the plaintiffs to produce some documents and tape recordings four different times. The lawyer ignored the orders and when confronted by the judge he played dumb. Prof. Turley reports what followed this way: "Judge Whipple demanded to know if Starrett [the lawyer] had turned over the 58 documents. “To them?” Starrett responded. Whipple responded, “Well, hell yes. Why would you ask a question like that? Hell, yes, to the defendant.” Whipple then cut off Starett and said in part, “I kept telling you to produce stuff, expert stuff. You ducked. You wove … .You must produce them. Jesus Christ, I don’t want any more ducking and weaving from you on those 58 documents.” When Starrett insisted that the court had not ordered the documents to be turned over, Whipple exclaimed “That’s it. I’m done. I’m granting the defendant’s motion to dismiss this case for systematic abuse of the discovery process.” He accused Barazi of lying and added, “What a disgrace to the legal system in the Western District of Missouri … .We’re done. We’re done, done, done.”

The Court of Appeals for the 8th Circuitcriticized both parties for provoking Judge Whipple, but, in a 2-1 decision, found that the transcripts “reflect a sufficiently high degree of antagonism to require reassignment of the case on remand. The court, however, expressed sympathy for the lower court and stated that it was not “blind to the course of conduct that triggered the court’s frustration.”

I would have voted with the dissenting judge. Discovery abuse is a dirty little secret in our profession. I have been a witness to a lot of it and it just does not look like courts do enough to control it. Many lawyers engage in this type of conduct precisely because they know they can get away with it. Judges need to take control and put an end to it. If I had been the judge in the case, the only thing I would have done differently is that I would have given the attorney an ultimatum: either the documents are on my desk by the end of the day or the case is dismissed. If they could not produce that's not my problem. They had had 4 orders issued ordering them to produce already. I also would have imposed sanctions and ordered the attorney to pay the costs the other party incurred in trying to get access to the documents. Enough is enough.

For the opinion, click here. For the full story, click here.

Should we judge attorneys based on their clients?

What are the moral implications of representation? Is it fair to judge attorneys based on their clients? These are important questions that we discuss in courses on Legal Ethics, Legal Profession and others. Check out this link to a comment on the issue over at the Legal Ethics Forum. In particular take a look at the comment by Professor Monrow Freedman.

Lawyer Tirades costs client $15 million

I have recently posted a couple of comments on cases that discuss the limits of proper argument (here and here). Here is another new case on the subject.

In this case, the plaintiff argued she suffered catastrophic injuries at age 12 when she was hit by a minivan owned by the YMCA of Metropolitan Chicago. The defendant was represented by a lawyer who engaged in repeated loud tirades which the deputy sheriff told the judge jurors could hear even when the judge asked the attorney to keep his voice down.

According to the judge, the blowups were ''purposefully made for the jury to hear,'' as part of a ''grandiose display of arrogance to the judicial system,'' by a defense lawyer who ''ignored the court in an effort to divert justice.'' This is as great a description of an improper argument as I have ever seen.

Relying in part on the deputy's statements, the trial judge concluded that the plaintiff was entitled to a second trial. The second trial was held and the new jury found for the plaintiff to the tune of more than $15 million.

The defendant appealed arguing that the trial judge erred in relying on the deputy's off-the-record statements about what the jurors heard, but the Court of Appeals sustained the lower court. Finding that there was no contradiction between the trial court's recollection and the record, the trial court was be permitted to rely upon its recollections. And, based on the extensive record of persistent misconduct by the defendant's attorney, the Court found no abuse of discretion in granting the second trial.

The case, U.S. Bank v. YMCA of Metropolitan Chicago, can be found here.

Billing during tough financial times

Here is a link to an article in the National Law Journal about billing clients during tough financial times. Full story here.

Illinois slaps on the wrist for stealing. Bad example!

The Legal Profession Blog reports today that an Illinois hearing board concluded that a lawyer's license should be "monitored rather than revoked" in a case where the attorney stole money from his firm and then lied about it to the firm and during the disciplinary procedure. The attorney's explanation of the misconduct was that "we were behind on our bills and our house payment, and I just made a bad choice . . . That's why I did it."

So let me get this straight.... the guy is behind in his bills so he steals money from his firm; he admits to it and the board just gives him a two year suspension stayed after nine months with two years of probation. That's a gift to him and a bad example to the rest of us. I've said this before. I have no patience for people who steal money. He should have been disbarred on the spot. Period; end of story. How can you possible conclude that the lawyer "knowingly and intentionally . . . committed conversion" and then not disbar him?

Here is what the board said: "The misconduct committed by the Respondent was extremely serious. He intentionally converted funds belonging to the law firm where he was an associate attorney. Instead of turning over to the law firm, as he was required to do, certain funds he received in fees the Respondent deposited such funds into his own account and used the funds for his own purposes. The Supreme Court has stated that intentional conversion involves "moral turpitude," is a "grievous departure from an attorney's ethical obligations," and "places the entire legal profession in disrepute." [citations] The Court has also made it clear that every attorney, experienced or inexperienced, should understand the wrongfulness of taking funds belonging to another. [citations] Moreover, the Respondent was charged with and admitted twenty-one separate conversions of client fees belonging to the law firm during a one-year period. Thus, the seriousness of the Respondent's misconduct is enhanced because he engaged in a pattern of conversions."

The Board then went through a number of "aggravating circumstances" including the fact that he submitted false information to the law firm in order to carry out and conceal his scheme of converting the fees he received from the clients, that the testimony disclosed more conversions than those discussed in the disciplinary complaint and that he lied in his testimony before the board.

How can you possibly not recommend to disbar this guy?! Shame on the board. What message does this send? Go ahead and steal and lie about it; don't worry, we won't really be too hard on you as long as you have a good excuse. And we wonder why people hold lawyers and our disciplinary system in low esteem!

The opinion can be found here.

Judges involved in juvenile court fraud

A couple of days ago I posted a note about a case in Michigan involving a judge and prosecutor who got caught in a scheme to allow perjured testimony (and there are a couple of new comments on it). Now comes news of what some authorities are calling the biggest legal scandal in Pennsylvania history. Two judges have pleaded guilty to tax evasion and wire fraud in a scheme that involved sending thousands of juveniles to two private detention centers in exchange for $2.6 million in kickbacks. Full story here.

Congress Raises Fee for Federal Court Assigned Counsel

Marcia Coyle, of the New York Law Journal, is reporting today that Congress has authorizeda raise for attorneys who accept assignments under the federal Criminal Justice Act (CJA) from $100 per hour to $110 per hour. For the full story go here.

Senators introduce bill to increase Legal Services funding and to lift restrictions

Law.com is reporting today that a key group of Democratic senators has introduced a bill to increase funding for the Legal Services Corp. (LSC) and to lift many of the restrictions on LSC-funded attorneys, such as the prohibition on the filing of class actions and the collection of attorney fees. The senators said the bill was necessary because the federal commitment to legal services is not as effective as it needs to be. The legislation, called "The Civil Access to Justice Act of 2009," does the following:

• Increases the authorized funding level for LSC to $750 million, which is approximately the amount appropriated in 1981, adjusted for inflation, which was the high-water mark for LSC funding. At the time, this level was seen as sufficient to provide a minimum level of access to legal aid in every county. Adjusted for inflation, this "minimum access" level would need to be about $750 million today.

• Lifts many of the restrictions currently placed on legal tools that LSC-funded attorneys can use to represent their clients. The bill lifts the prohibition on collecting attorney fees, permits legal aid attorneys to bring class actions grounded in existing law and permits lobbying with nonfederal funds. "In the spirit of compromise," the senators said, the bill does maintain the prohibition on abortion-related litigation as well as many of the limits on whom LSC-funded programs can represent, including undocumented immigrants (with limited exceptions such as victims of domestic violence), prisoners challenging prison conditions and people charged with illegal drug possession in public housing eviction proceedings.

• Lifts all restrictions, except those related to abortion litigation, on the use of nonfederal funds. Lifting these restrictions allows individual states, cities and donors the ability to determine themselves how best to spend nonfederal funds to ensure access to the courts.

• Authorizes a grant program from the Department of Education to expand law school clinics.

The bill is supported by, among others, the American Bar Association, Brennan Center for Justice, National Legal Aid & Defender Association, National Organization of Legal Service Workers and United Auto Workers.

Judge & Prosecutor Indicted Over Perjury

A Michigan judge, a former prosecutor and two police officers have been charged with several counts of misconduct and conspiracy to commit perjury in relation to a drug trial in 2005. The officers are accused of lying to conceal the role of an informant in a cocaine bust. When the case made its way to circuit court in September 2005, the judge allegedly knew of the cover-up and allowed the officers to testify that the informant did not have a connection to the police. The judge also barred the defense from seeing the informant’s cellphone record, which would have shown that the informant called one of the officers. The prosecutor never corrected the testimony. For the full story go here.

Supreme Court decides case re ineffective assistance of counsel

In an opinion announced yesterday, the U.S. Supreme Court rejected a claim of innefective assistance of counsel filed by an inmate convicted of murder. The argument was based on the fact that the lawyer advised the client to withdraw an insanity plea. The opinion is available here.

The Court of Appeals had held the advice violated standards of professional conduct because it was the only affirmative defense available to the defendant. But the Supreme Court held the defendant needed to prove that his lawyer’s advice was deficient and that it had prejudiced him (which is, in fact, the standard the Court established many years ago).

Attempt to rescue IOLTA plan during bad economy

As all other states, Illinios has an IOLTA program which uses the interest earned in certain lawyer trust bank accounts to fund legal aid programs. During the current bad economy, though, the interest rates have fallen so low that the program has not been generating much income at all. In an attempt to remedy the situation, last Friday the Illinois Supreme Court approved an amendment to Rule of Professional Conduct 1.15 which guarantees an interest rate of least 1 percent on IOLTA accounts. Ruth Ann Schmitt, executive director of the Lawyers Trust Fund, said the rule change provides banks the option of paying a ''safe harbor'' yield equal to 70 percent of the Federal Funds Target Rate or 1 percent, whichever is higher.

Ineffective assistance of counsel in death penalty cases

A recent study of capital cases in Texas shows that nine death row inmates lost their appeals due to the failure of counsel to file by the court deadline. Johnny Ray Johnson was put to death last month after his lawyers missed a filing deadline by one day. He is one of six inmates put to death after missed deadlines. Three more inmates are pending execution after losing appeals over late filings. This is a disgrace. How difficult is it to meet a deadline? Every year I tell my students that missing a deadline is plain and simple the stupidest mistake a lawyer can make. These lawyers should be sanctioned for this conduct. There really is a crisis of ineffective assistance of counsel in this country and the credibility of our system of criminal justice is at stake.

Thanks to Jonathan Turley for the information.

Attorney client privilege over threats to others?

Suppose a client confidentially tells his attorney that he is going to kill a certain person and that the attorney then discloses the information in an effort to protect the possible victim. Would the information still be covered by the attorney client privilege?

In a decision issued today by the Massachusetts Supreme Court, the court says yes. Because the opinion is short, I have copied it in full below:

In the Matter of a GRAND JURY INVESTIGATION.
March 23, 2009.

SPINA, J.

This case requires us to decide whether the attorney-client privilege applies where a client leaves messages on his counsel's telephone answering machine threatening to harm others and the attorney discloses those communications in order to protect those threatened.

The salient facts are not in dispute. Attorney John Doe was representing Michael Moe, [FN1] a father, in a care and protection proceeding in the Juvenile Court. On November 8, 2007, two days after an adverse ruling by a Juvenile Court judge, Moe left six messages on Attorney Doe's answering machine between 1:08 A.M. and 1:24 A.M. Moe indicated that he knew where the judge lived and that she had two children. In the fourth message, a voice that Attorney Doe recognized as Moe's wife stated that she and Moe were going to "raise some hell." In the fifth message, Moe stated that "some people need to be exterminated with prejudice." [FN2] Attorney Doe subsequently erased the messages from the answering machine.

During the following week, Attorney Doe observed that Moe had become "more and more angry," and on November 13, 2007, he filed a motion to withdraw as Moe's counsel, which was subsequently allowed. Concerned for the safety of the judge and her family, he disclosed the substance of the messages to the judge.

On November 21, 2007, Attorney Doe was interviewed by a State trooper regarding the substance of the messages, but declined to sign a written statement.

A District Court complaint alleging threats to commit a crime, see G.L. c. 275, § 2, and intimidation of a witness, see G.L. c. 268, § 13B, subsequently issued against Moe. The Commonwealth then initiated grand jury proceedings and filed a motion to summons Attorney Doe before the grand jury. [FN3] See Mass. R. Prof. C. 3.8(f), 426 Mass. 1397 (1998) (discussing circumstances under which prosecutor may subpoena attorney to criminal proceeding to present evidence about client). That motion was allowed. On December 21, 2007, Attorney Doe, citing the attorney-client privilege and Mass. R. Prof. C. 1.6, as amended, 426 Mass. 1435 (1998), moved to quash the summons. A judge in the Superior Court denied Attorney Doe's motion, reasoning that Attorney Doe and Moe had not carried their burden of demonstrating that the attorney-client privilege applied "because they ... failed to show that the messages were left in an attempt to obtain legal services." Attorney Doe filed a motion to reconsider, requesting, inter alia, an evidentiary hearing. The motion was denied. The Commonwealth and Attorney Doe submitted a joint request to report the decision to the Appeals Court. See Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004). The Superior Court judge reported the case, and we transferred the case here on our own motion. [FN4]

Neither party disputes that Attorney Doe could, consistent with rule 1.6, disclose the substance of Moe's messages. Cf. Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 110-111 & n. 1 (1997) (Purcell ) (no question as to ethical propriety of attorney's disclosure where client threatened to burn down building). Rule 1.6 provides, in pertinent part:

"(a) A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

"(b) A lawyer may reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information: (1) to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm ..." (emphasis added).

While nothing in rule 1.6(b) required Attorney Doe to disclose Moe's communications to the judge or police, he had discretion to do so. [FN5] However, the ethical permissibility of Attorney Doe's disclosure does not resolve the distinct issue presented here: whether Attorney Doe can be compelled to testify before the grand jury. See Purcell, supra at 111; comment [5] to Mass. R. Prof. C. 1.6, 426 Mass. 1322 (1998) (discussing difference between attorney-client privilege and rule of confidentiality).

Evidentiary privileges "are exceptions to the general duty imposed on all people to testify." Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982). We accept such privileges "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Three Juveniles v. Commonwealth, 390 Mass. 357, 359-360 (1983), cert. denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984), quoting Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). The attorney-client privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.' " Purcell, supra at 116, quoting Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 481- 482 (1990). A party asserting the privilege must show that (1) the communications were received from the client in furtherance of the rendition of legal services; (2) the communications were made in confidence; and (3) the privilege has not been waived. See Matter of the Reorganization of Elec. Mut. Liab. Ins. Co., 425 Mass. 419, 421 (1997). See also Purcell, supra at 115.

The Commonwealth contends that the attorney-client privilege does not apply because Moe's communications were not made "for the purpose of facilitating the rendition of legal services." Purcell, supra at 115. In making this argument, the Commonwealth implicitly asks us to reconsider a portion of our discussion in the Purcell case.

In Purcell, supra, the client was discharged as a maintenance man at the apartment building in which his apartment was located and had received an order to vacate his apartment. Id. at 110. During consultation with an attorney, the client stated an intent to burn the apartment building. Id. The attorney disclosed these communications to police and criminal charges were brought against the client. Id. When the prosecutor subpoenaed the attorney to testify at trial, the attorney filed a motion to quash, which was denied. Id. The central issue in that case was whether the crime-fraud exception to the attorney-client privilege applied. Id. at 111-112. We concluded that the communications would not fall within the crime-fraud exception unless the district attorney could establish facts by a preponderance of the evidence showing that the client's communication sought assistance in or furtherance of future criminal conduct. [FN6] Id. at 113-114.

Recognizing that whether the attorney-client privilege applied at all was open on remand, we also considered whether a communication of an intention to commit a crime, if not within the crime-fraud exception, could be considered a communication for the purposes of facilitating the rendition of legal services. Id. at 115. We held that a "statement of an intention to commit a crime made in the course of seeking legal advice is protected by the privilege, unless the crime-fraud exception applies." Id. We reasoned that a gap between the crime-fraud exception and the applicability of the privilege "would make no sense," id. at 116, because the attorney-client privilege was premised on the benefits of unimpeded communication between attorney and client, id. at 116, and noted that "an informed lawyer may be able to dissuade the client from improper future conduct and, if not, under the ethical rules may elect in the public interest to make a limited disclosure of the client's threatened conduct" (emphasis added). Id.

The limited disclosure adverted to in the Purcell case occurred here. Concerned for the safety of the judge, her family, and a social worker, Attorney Doe disclosed Moe's communications to the judge and law enforcement authorities to protect them from harm.

We discern no reason to depart from the Purcell decision, and hold that Moe's communications were made in furtherance of the rendition of legal services and thus protected by the attorney-client privilege. The Commonwealth's argument to the contrary essentially raises an issue of germaneness. See 8 J. Wigmore, Evidence § 2310 (McNaughton rev. ed.1961); 24 C.A. Wright & K.W. Graham, Jr., Federal Practice and Procedure § 5490 (1986 & Supp.2008). Scholars, commentators, and courts have formulated a number of tests for determining the germaneness of a client's communication. [FN7] However, none of these formulations appears to give clients breathing room to express frustration and dissatisfaction with the legal system and its participants. The expression of such sentiments is a not uncommon incident of the attorney-client relationship, particularly in an adversarial context, and may serve as a springboard for further discussion regarding a client's legal options. If a lawyer suspects that the client intends to act on an expressed intent to commit a crime, the lawyer may attempt to dissuade the client from such action, and failing that, may make a limited disclosure to protect the likely targets. Purcell, supra at 116. Requiring the privilege to yield for purposes of a criminal prosecution would not only hamper attorney-client discourse, but also would discourage lawyers from exercising their discretion to make such disclosures, as occurred here, and thereby frustrate the beneficial public purpose underpinning the discretionary disclosure provision of rule 1.6. See Purcell, supra at 111 & n. 1, 114. Furthermore, any test to ascertain the germaneness of an ostensibly threatening communication on a case-by-case basis would make the privilege's applicability uncertain, rendering the privilege "little better than no privilege." Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir.1994), quoting In re von Bulow, 828 F.2d 94, 100 (2d Cir.1987). Warning clients that communications deemed irrelevant to the matter for which they have retained counsel will not be protected may not only discourage clients from disclosing germane information, but also may disincline clients to share their intentions to engage in criminal behavior. In the latter circumstance, a lawyer's ability to aid in the administration of justice by dissuading a client from engaging in such behavior is impaired. See In re Pub. Defender Serv., 831 A.2d 890, 901 (D.C.2003). The lawyer also may never receive the very information necessary for him or her to determine whether to make a limited disclosure to prevent the harm contemplated by the client.

In sum, we reaffirm that a client's communications to his lawyer threatening harm are privileged unless the crime-fraud exception applies. See Purcell, supra at 116. Because the Commonwealth does not assert that Moe's communications come within the crime-fraud exception, they were privileged. The order denying Attorney Doe's motion to quash is hereby vacated and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

FN1. The Commonwealth's motion to impound the case was allowed by the Superior Court judge and we shall therefore use pseudonyms.


FN2. The defendant also threatened a Juvenile Court social worker.


FN3. At Moe's arraignment in the District Court, the Commonwealth moved for pretrial detention. Attorney Doe, who had been summonsed to that hearing, indicated, through counsel, that he would object to testifying against Moe.


FN4. The Commonwealth also sought to compel Attorney Doe to testify in the criminal proceedings pending in the District Court. The District Court judge, while acknowledging the Superior Court judge's contrary ruling, denied the Commonwealth's motion to compel for substantially the same reasons discussed infra.


FN5. The Commonwealth does not argue that Mass. R. Prof. C. 3.3, 426 Mass. 1383 (1998) (candor toward tribunal); Mass. R. Prof. C. 4.1(b), 426 Mass. 1401 (1998) (failure to disclose material fact to third person where disclosure necessary to avoid assisting in criminal or fraudulent act by
client); or Mass. R. Prof. C. 8.3, as amended, 430 Mass. 1326 (1999) (reporting professional misconduct) would require Attorney Doe to disclose Moe's communications. We note that the comment [3] to rule 4.1 explains:

"[T]he word 'assisting' refers to that level of assistance which would render a third party liable for another's crime or fraud, i.e., assistance sufficient to render one liable as an aider or abettor under criminal law or as a joint tortfeasor under principles of tort and agency law. The requirement of disclosure in this paragraph is not intended to broaden what constitutes unlawful assistance under criminal, tort or agency law, but instead is intended to ensure that these rules do not countenance behavior by a lawyer that other law marks as criminal or tortious."


FN6. The Commonwealth quite properly does not argue here that the crime-fraud exception to the attorney-client privilege applies. Under the crime-fraud exception, client communications which "seek[ ] assistance in or furtherance of future criminal conduct" are not protected by attorney-client privilege. Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 114 (1997).


FN7. See E.M. Morgan, Basic Problems of Evidence 113 (4th ed. 1963) ("The
communication, to be privileged, must be such that the lawyer or the client reasonably believed it to be relevant to the subject of the consultation ..."); Restatement (Third) of the Law Governing Lawyers § 72 comment c, at 550 (2000) ("A client must consult the lawyer for the purpose of obtaining legal assistance and not predominantly for another purpose"); 8 J. Wigmore, Evidence § 2310, at 599 (McNaughton rev. ed.1961) ("test is ... not whether the fact or the statement is actually necessary or material or relevant to the subject of the consultation, but whether the statement is made as a part of the purpose of the client to obtain advice on that subject" [emphasis in original] ); Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D. 398, 411 (D.Md.2005) (request for legal advice must be "primary purpose" of communication between client and lawyer); First Chicago Int'l v. United Exch. Co., 125 F.R.D. 55, 57 (S.D.N.Y.1989) (communication privileged if it would not have been made "but for" client's need for legal advice or services).

Cause of Action for conduct during a deposition?

There are many cases available to illustrate issues of misconduct during discovery in civil cases - particularly during depositions. The New Jersey Appellate Court has just added a new one with a twist. In this particular case, the plaintiff in a wrongful death case filed a complaint against the attorney for the defendant to recover for damages allegedly caused by the attorney during the deposition of the plaintiff. The attorney taking the deposition represented a doctor whose conduct the plaintiff alleged resulted in the plaintiff's daughter's death. During the deposition, the father's lawyer objected to a certain line of questions by the doctor's lawyer and threatened to end the deposition. This type of threat, by the way, has been held to be misconduct by other courts but it was not questioned here. After that exchange the deposition continued without incident.

Typically, these types of cases involve the court evaluating the conduct of the lawyer in order to decide whether to impose sanctions. What is new about this issue here is that the plaintiff then turned around and sued the defendant's lawyer. The suit contended that the deposition conduct was "outrageous and inhumane" and was "so reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency."

The court, however, held there was no basis for the claim. The lawyer had the right to, in fact had a duty to, closely question and challenge the witness. The opinion is available here.

I agree with the decision of the court. As unpleasant as it can be, witnesses have to understand that lawyers have a good deal of leeway while conducting a deposition and it is the witness' lawyers duty to prepare him or her for it. If anything, I think the conduct of the lawyer for the witness in this case was more questionable. He had no right to threaten to end the deposition the way he did and if he had ended it, the defendant's lawyer would have been able to support a claim for sanctions and costs.

Unfortunately, many depositions have become shows for lawyers to do a lot of grandstanding and yelling and courts are inconsistent in the way they try to regulate them. Here is an example that has been floating over the internet for years:

Important lesson for all students

The Legal Profession Blog is reporting today that the New York Appellate Division for the Third Judicial Department has declined to admit an applicant for admission who had passed the February 2005 New York examination because he continued to write after he had been told to stop while taking the bar exam in Michigan. His application in Michigan was denied due to his misconduct and the court in NY denied his application until he is able to obtain admission in Michigan. Note that the applicant took the bar exam 4 years ago and is still waiting to be admitted. So, remember, when the proctors say put your pencils down, they mean it!
The opinion is available here.

Another case of prosecutor misconduct for statements to the jury

Last Friday, I posted a note commenting on a case in which the Court held that a prosecutor "exceeded the limits of approved rhetoric." Today I found out about a case decided last Thursday in which Judge Posner demands that the Justice Department discipline a prosecutor for making false statements to the judge and improper statements during her summation to the jury.

In its brief to the Court of Appeals, the government appologized for the remarks to the jury and admitted that the comments "cast the defendant’s exercise of his constitutional right to counsel in a negative light.”

Writing for the Court, Judge Posner stated the apology was insufficient. In reviewing the prosecutors conduct, Posner stated that the trial judge "should have made clear to the prosecutor after sustaining the first objection that one more false step and he would declare a mistrial." Finding additional improper conduct, Posner warned that "had the government presented enough evidence to sustain a conviction, we would have reversed the judgment and ordered a new trial on the basis of the prosecutor’s misconduct."

Discussing what to do about the prosecutor's improper conduct, Posner concludes: "The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion." Evidently, Posner expects a lot more.

The opinion is available here.

Himmel in trouble again

James Himmel, the protagonist of In Re Himmel, the famous case about the duty to report another lawyer's misconduct, is in trouble again. A hearing board filed an opinion today recommending his suspension for 30 days because of his neglect of a client's case. Himmel admitted that he "failed to act with reasonable diligence and promptness in representing the [clients] in violation of Rule 1.3 of the Illinois Rules of Professional Conduct" since he "failed to perform any legal services on behalf of [them]." He admitted that he did not open and review correspondence between himself and the clients, that he did not respond to the clients’ many requests for information and that he allowed the statute of limitations pass on the clients' claim without diligent representation. The opinion is available here.

Thanks to LegalProf blog for the information.

Attorneys' fees under attack in Minnesota

Public Citizen reports today on an interesting development in Minnesota where an old "reform" tactic is back in style. As I have stated many times before, most tort reform efforts are directed at either making it more difficult for plaintiffs to bring their claims or making sure they don't recover as much when they do. An old tactic in this effort is to attack the plaintiff's lawyer's fees. By limiting the fees, it is likely many plaintiffs will not be able to find representation.

Some legislators in Minnesota have proposed a bill that states "When a statute provides for the award of attorney fees to a party that has recovered money damages, the court, in setting the amount of attorney fees, must, in addition to other factors, take into consideration the reasonableness of the attorney fees sought in relation to the amount of damages awarded to the prevailing party."

As argued in Caveat Emptor, "maybe that sounds innocent, or even logical, on its face. If the damages awarded to the prevailing party are small, shouldn’t the attorney fees be small, as well?"

The problem is that, if enacted, this law would result in a drastic increase in wasted court time, attorney resources, and dissuade Minnesota citizens from seeking redress when their rights are violated.This is particularly true in cases of consumer protection laws, most of which provide relatively small amounts of money as compensation.

Take for example a law that states that a landlord who changes the locks in order to exclude a tenant is liable for $500 plus attorney fees and costs. Because it is not worth to hire a lawyer to sue over $500, the law tries to ensure that tenants be able to find representation by making the landlord pay the tenant’s lawyer. Thus, the lawyer can spend more than $500 and the client can get his compensation in full. This ensures the client gets the representation he or she needs and that he or she gets full compensation.

The new proposed law would eliminate this and make much of consumer protection law essentially meaningless.

Lawyer Needed Corporate Client's Consent Before Starting Company in Same Business

The Florida Supreme Court decided Feb. 19 in Florida Bar v. Herman (available here) that launching a company in the same business as a corporate client, without obtaining the client's consent, violated ethics rules against representing directly adverse interests, acquiring a financial interest contrary to a client, and acting dishonestly.

Non-client can sustain claim vs lawyer for negligent misrepresentation

In the famous case Togstad v. Vesely, Otto, Miller & Keefe (1980) the Supreme Court of Minnesota recognized the possibility of a legal malpractice claim by a prospective client. In other words, the court recognized that it would be possible for a plaintiff to have a legal malpractice claim against a lawyer with whom the plaintiff did not have an attorney-client relationship.

About a month ago, the Colorado Court of Appeals decided a similar case but using a very different approach. In this case, the plaintiffs sought legal advice from the defendants regarding their legal options after a traffic crash. Defendants allegedly misinformed the plaintiffs about the applicable statute of limitations. Relying on that advice, plaintiffs waited to file their complaint. When they did, the claims were dismissed because they were barred by the statute of limitations.

Plaintiffs then brought this action against defendants asserting claims for professional negligence and negligent misrepresentation. The court dismissed both claims. On appeal, though, the court of appeals reversed the claim for negligent misrepresentation. It is not clear how the court would have approached the malpractice claim because the plaintiffs did not appeal that part of the decision.

Applying the standard set forth in section 552 of the Restatement (Second) of Torts, and citing an older case, the court noted that to establish a claim for negligent misrepresentation, the plaintiff must show that the defendant supplied false information to others in a business transaction and failed to exercise reasonable care or competence in obtaining or communicating information on which other parties justifiably relied.

Because this approach would open lawyers to potential liability to an unlimited number of third parties, the court opines that the plaintiff show that the defendant supplied false information in the context of a business transaction regarding the representation of a potential client. Informal statements by an attorney in a social setting would generally not result in a viable claim against the attorney. Thus, whether statements are made during an initial consultation for legal services or in a casual manner in a social setting may ultimately be determinative of whether a lawyer is liable for negligent misrepresentation.

The case, Steele v Allen & Allen, is available here.

DA confesses he lost case on purpose

Assume a district attorney has doubts about the guilt of the defendant in a criminal case, but his boss tells him to continue to prosecute the case. Instead of dropping the charges, the DA helps the defense build their case and deliberately loses the case. Should the DA be disciplined? Not in New York. Full story here.

The limits of proper argument

"The limits of proper argument" is a phrase I use to describe a topic we cover in class related to whether there should consequences for what attorneys say at trial. Mike Frisch of The Legal Profession Blog reports today that the Kansas Supreme Court has added a new case on this subject.

In a case called State of Kansas v Decker, available here, the Court held that even though the prosecutor exceeded the limits of approved rhetoric, his misconduct "did not rise to the level of being so gross and flagrant as to constitute plain error."

Judge for yourself. During his closing argument in a felony murder trial, the prosecutor stated:

"They [are] saying that Brandi shook the baby when? She shook the baby that night while she's in there feeding her putting her to bed, is that what they want you to believe? They are saying that there's a reasonable doubt about that, that you don't know who did it. Well, you do when you look at all the evidence. And another thing is he's no longer presumed innocent. Case is in. Evidence is in. At this point based on everything that we've proved, he's guilty." (Emphasis added.)

The Court concluded that "[i]t does appear that the prosecutor was attempting to convey that the State had overcome the presumption of innocence by "everything that [it] proved." We see no manifestation of ill will. . . . The comment likely had little weight in the minds of the jurors, and we find that the error was harmless." The court rejected a number of other contentions and affirmed the conviction.

Jury duty? Take it seriously or you could be disbarred.

In a story from about a week ago, a lawyer in California was caught lying to a judge about whether he changed his vote as a juror in a case just to get deliberations over with so he could get back to his busy law practice. A California State Bar Court review panel on Friday upheld disbarment (available here) for the 19-year lawyer after finding he violated his oath as a juror and then compounded the problem by lying to the trial court judge when confronted. This is just another reminder that attorneys are held to high standards of conduct even if the conduct is not during the actual practice of law. See full story here.

Problem with the new Model Rule 1.10

ABA Model Rule 1.10 was recently amended to allow a law firm to erect a screen around a recently hired attorney to prevent that lawyer's conflicts from being imputed to the rest of the firm. It is now clear that the actual language adopted by the ABA does more than that. The rule as drafted appears to allow screening even for non-migrating attorneys. Unless corrected, this could allow firms to purposely represent clients with concurrent conflicts of interest. Apparently, a number of people noted this problem and contacted the ABA. An associate director of the ABA's Center for Professional Responsibility has recently confirmed that this issue has been identified and is being addressed. Stay tuned for the corrected version of the Rule.

Thanks to the Legal Ethics Forum for the "heads up."

Even more on the possible sanctions for John Yoo

We "legal ethicists" must be on the same wavelength! A few minutes after I finished the previous two posts, I started getting email messages from a discussion list I am in about the same topic. Seems like a lot of people are discussing this today. Because the e-mail discussion list is not public, let me try to summarize some of the main points here:

There should be sanctions because there is there's accountability for bad faith legal work all the time. Yoo believes he's right, but no one else does.

The problem is that Yoo's memos were a good faith opinion; he believed what he said. The fact that others now think his opinion was "beyond the pale" does not mean it was in bad faith or deliberately false.

Yes, he believes he's right about this, but no one else does.

But there are legislators and others who believe torture is acceptable under certain circumstances. It is hard to call Yoo's opinions “so far outside the range of reasonable professional disagreement” when people in power then, and now, continue to hold such opinions.

Also, it is dangerous to embrace a standard that holds any extreme minority opinion to be worthy of discipline simply because "the experts" are aligned against it.

More on possible sanctions for former White House Counsel

Just when I finished my previous post, I noticed a new comment on the same question in the Legal Ethics Forum. Go here for the full comment. It has more lots of information and links to other articles.

More on whether John Yoo should be disbarred

Since my post a few days ago on whether John Yoo should be disbarred I have been reading many of the news items on the subject. I found a column which I think makes one of the best cases I have seen against him. It all comes down to what you think is the type of dishonesty needed to trigger a violation of rules like Model Rule 8.4.


The author of the column does a good job of pointing out that Yoo has a history of intellectual dishonesty, but he also asserts that there is no reason to impute him with evil motives. He also points out that the new head of Office of Legal Counsel, Dawn Johnsen, has stated that she does not question Yoo's sincerity in claiming that he told the White House what the law was.

Again, the case against Yoo seems to come down to an attack on his intellectual honesty. The author the column linked above makes his case against Yoo on the argument that Yoo's scholarship is dubious and characterized by deliberate distortions and what he calls "blatant intellectual dishonesty" and "deceitful methods of advocacy." Others have argued that Yoo's memos offer conclusions that were "simply not a plausible reading of the case law" that some of this other opinions are "unsupported," "argued without any citation of authority," and that they contain "questionable statutory interpretations," "errors," "unusual lack of care and sobriety in their legal analysis," and offer "cursory and one-sided legal arguments."

Is there an Ethical Obligation to Find a Cheaper Alternative?

If a lawyer believes that an outside vendor (say lawyers in India) could perform litigation document review more cheaply and just as effectively as a young associate, does the lawyer have an obligation to tell the client about that option? Click here for an interesting discussion on this question at the Legal Ethics Forum.

Should John Yoo be disbarred?

It is being reported in many places that the Office of Professional Responsibility might recommend the disbarment of John Yoo who currently teaches at Berkeley law school. Yoo is the former deputy assistant attorney general in the Office of Legal Counsel who authored the memos that provide legal support for the Bush administration's approach to torture, surveillance and other aspects of the "war on terror." Yoo is facing growing opposition at his law school and there is even a website committed to his removal.

I abhor Yoo's views, but I am not sure I understand what is the basis for calling for his dibarment. It is argued that he developed the legal analysis upon which the administration based its position justifying the use of torture. It is alleged that his memos were based on questionable, weak legal arguments. The website mentioned above refers to the fact that Yoo "advocated that Bush be allowed to do essentialy whatever he wanted in the so-called "War on Terror."

Again, that's terrible, but what rule did he break? If this is all there is to it, is his conduct criminal? Some are arguing that the Bush administration engaged in war crimes by authorizing torture, but does that include the lawyer who wrote the memo with the bad reasoning to justify it? If so, okay, then we can say his conduct is criminal and he should be disbarred for violating Rule 8.4. But one problem with this is that the Obama administration seems intent on dragging its feet and not conducting an investigation into criminal conduct. So can we justifiably disbar someone for "criminal conduct" when the conduct has not been adjudicated to be criminal yet?

Rule 8.4 also talks about conduct involving dishonesty, fraud, deceit or misrepresentation. Again, assuming the conduct is just preparing the memos, does it fall in this category? I guess it depends on whether Yoo really believed what he was advocating, no? If he really thought his analysis was legally sound, can we claim he was misrepresenting the law? He was wrong, but was he misrepresenting the law intentionally? That is hard to prove to say the least.

And then there is the "catch all" rule; the one that refers to conduct "that is prejudicial to the administration of justice." I guess you can argue the conduct was this

What bothers me about this debate is whether the basis for disbarment is just that we disagree with the conclusions of the work done by the lawyer. I guess I have to read and think more about it before I discuss it further.

Competing with own client? Pro bono obligation as a punishment?

A recent decision by the Florida Supreme Court addresses two interesting questions.

The first one is whether it is a violation of the rules of professional conduct for a lawyer to launch a company in the same business as a corporate client without obtaining the client's consent. The court found that it is. It held that the lawyer violated ethics rules against representing directly adverse interests, acquiring a financial interest contrary to a client, and acting dishonestly. The case is Florida Bar v. Herman, available here.

The second issue relates to the appropriate form of punishment for the conduct. The court suspended the lawyer for 18 months, rejecting a referee's recommendation to impose a much shorter suspension along with a period of probation and pro bono service. The interesting question is whether requiring pro bono service as an element of probation is an appropriate disciplinary sanction. The court makes clear it does not think so, and I have to agree this is a good point. Performing pro bono work is something we should all aspire to. It is something people should be encouraged to do on their own. Thinking of pro-bono work as a form of punishment sends the wrong message.

Non refundable fees

There have been a few recent reports on the issue of whether attorneys can use non-refundable retainers. For example, a little over a month ago, the Ohio Supreme Court decided in Cuyahoga County Bar Ass'n v. Cook, Ohio, to impose a six-month suspension on a lawyer who charged his client a nonrefundable flat fee to represent her in a foreclosure matter. In a per curiam opinion, the court reaffirmed its view that “earned-upon-receipt retainers” are unethical unless they are true general retainers that secure the services of a particular attorney whose services may be needed in the future.


What is important here is the distinction between retainers and fees. Traditionally, the term retainer is used to refer to an agreement where the client agrees to pay a certain amount for the agreement on the part of the attorney to become the client's lawyer. That's it. The client pays for, so to speak, the right to say Lawyer X is my lawyer. Lawyer takes the money in exchance of a promise to be the lawyer for the client -- which implies to be available to the client to perform the client's work. Some say the retainer, therefore, buys "availability"; others say the retainer buys "the lawyer's name." Any way you look at it, this retainer (sometimes referred to as a general retainer), is earned the moment the agreement is reached. Thus, in most jurisdiction it can be non refundable.

What can't be non-refundable is the fee charged to perform a certain task. Why? Because if the task is not performed, then the attorney would be violating a basic principle of professional responsibility: "no money for nothing." For a fee to be reasonable under the rules, it must be for something. It must buy something. The retainer "buys" availability or the right to say someone is my lawyer. The fee buys work. If there is no work, the fee is unearned and if it is unearned the lawyer can't keep it.

Is It Improper for a Lawyer to Perform Magic Tricks for a Jury?

Law.com reports today that in a motion in limine in a case called Blash v. ABA Construction Group, the plaintiff's lawyers begged the judge to forbid their opponent, Steven G. Leventhal from performing magic tricks for the jury. The motion argued that a lawyer performing magic tricks is "highly prejudicial, confusing, misleading for the jury" and has "absolutely nothing to do with the substantive issues."

Although Leventhal conceded in his brief that he does perform magic tricks regularly in trials, during his opening and closing speeches, he insisted that there's nothing wrong with doing so. He said he has been doing magic for decades as a trial lawyer and that his illusions are designed to illuminate his arguments. Most often, he said, the tricks accompany portions of his closing that accuse the other side of hiding the truth or trying to use smoke and mirrors to create a false reality. In one trick, Leventhal, who works exclusively for defendants, said he slowly folds a $1 bill while explaining to the jury that the parts of the plaintiff's case just don't tie together. When he unfolds the bill, he said, the astonished jury sees a bizarre bill that appears to have been cut apart and pasted together the wrong way, with the corners in the middle. In another trick, Leventhal said, the slowly folded $1 bill is revealed to be a $100 bill and then, to the jury's collective amazement, changes back to a $1 bill. Go here for the full story.

According to Model Rule 3.4(e) a lawyer shall not allude to any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue, state a personal opinion as to the justness of cause, the credibility of a witness or the culpability of a party. According to Rule 3.5, the lawyer shal not seek to influence a judge or juror by means prohibited by law.

Would the lawyer violate any of these rules by performing the tricks described above?

Budget increase for legal services

The House of Representatives has approved a $40 million budget increase for the Legal Services Corporation (LSC) as part of the fiscal 2009 omnibus appropriations bill. The Legal Services Corporation is the single largest provider of civil legal aid for the poor in the nation. Established by Congress in 1974, the Corporation operates as a private, nonprofit organization to promote equal access to justice and to provide high-quality civil legal assistance to low-income Americans. The 11 percent increase would bring funding for the Corporation to a total of $390 million, the third consecutive year that the House has supported additional funding to provide civil legal assistance to low-income individuals and families. Most of the funding, $365.8 million, would be awarded as competitive grants to 137 nonprofit legal aid programs across the nation. For the full story go here.

What constitutes "practicing law"?

What conduct constitutes "practicing law" is a question that has defied clear answers. An attempt to define the concept of "practice of law" by an ABA Commission proved so difficult, the project was abandoned a few years ago.

Yet, courts and disciplinary boards have to address this question every time they have to decide cases where a person is accused of practicing law without a license. For example, the Illinois Hearing Board recently concluded that work performed by a suspended lawyer involved practice of law in violation of a suspension order.

The lawyer had been suspended temporarily from the practice of law and arranged for another lawyer to take over his cases, but continued to work "behind the scenes" on one of his cases. He worked on several drafts of a brief adding significant legal arguments to it and met with the other lawyer to discuss them.

Given these facts, the Board concluded that the lawyer had been practicing law during his suspension. The Board concluded that it was clear that the lawyer "used legal skills and knowledge to identify the legal issues, conduct legal research, and apply the case law to the facts of his case. This is the essence of practicing law."

One problem with this formulation, though, is that it can apply to law clerks at the firm too. In fact, the attorney argued that "he did nothing more than paralegals and law clerks do" -- which is definitely true. We all know that attorneys often ask students to prepare drafts of documents that the lawyers later file under their names. Sometimes the attorneys make substantial changes to the documents but sometimes they don't. Does that mean the students are practicing law illegally before they are admitted. If so, students should be worried.

The Board, without explaining it further, simply dismisses the argument saying "We are not breaking new ground by finding Respondent practiced law. We are simply applying well-established case law to the facts of this case. Respondent was not a law clerk or a paralegal. He was a suspended attorney."

That last sentence, obviously, is the key. The Board does not really care that students are helping lawyers do their work by applying legal skills students develop while in law school. The Board is concerned with the fact that the lawyer in the case was told to stop working and he continued to do so.

That being the case, the Board probably should have cited Illinois Supreme Court Rule 764(b), which expressly states what a disbarred attorney can and cannot do. And, the bottom line of this rule is that a suspended lawyer can't do even what a law student clerk can. Interestingly, also, the rule states that a violation of the rule would be enforced as contempt of court. I wonder if that sanction was mentioned in this case and how often it is invoked in cases like this one.

The concern is that suspended and disbarred lawyers are still out there doing legal work (or something very close to it) "behind the scenes." Unfortunately, there is no good way to monitor this type of activity until it is discovered, which usually happens by accident.


Thanks to Legal Profession Blog for the information.