NJ Supreme Court to decide (again) whether attorney can be sued for malpractice in negotiating a settlement that the client agreed to

Law.com is reporting (here) that the New Jersey Supreme Court has before it a case (Guido v Morris) which raises the issue of whether a client can sue his or her lawyer for malpractice over a settlement that the client originally said was acceptable.

This is an interesting question that the court has addressed before, reaching seemingly incompatible results. In Ziegelheim v. Apollo, 128 N.J. 250 (1992), the Court said the "fact that a party received a settlement [in an underlying action] that was 'fair and reasonable' [did] not mean necessarily that the party's attorney was competent or that the party would not have received a more favorable settlement had the party's incompetent attorney been competent…" For this reason, the Court refused to adopt a per se rule barring malpractice actions by clients who later become dissatisfied with their settlements, unless the clients were trying to commit fraud. However, more recently, in Puder v. Buechel, 183 N.J. 428 (2005), the Court held that a litigant who accepted a settlement in an underlying action and who clearly stated on the record that she was satisfied with the outcome was precluded from suing for malpractice.

The current case before the court is Guido v. Duane Morris, and it can have very important consequences for all attorneys in the state.

The statement quoted above from Ziegeineim v. Apollo makes perfect sense to me. The fact that a client accepts a settlement does not preclude the possibility that an attorney was negligent. However, openning the door to possible liability any time a client changes his or her mind after he or she agreed to a settlement proposed by the attorney can make the attorney's practice more difficult and can, ultimately result in fewer settlements since, fearing possible liability, attorneys could become reluctant to recommend settlements. At the very least, it would affect the dynamics of the attorney-client relationship.

Attempting to reach a compromise between the two precedent cases, the court of appeals in Guido concluded that a malpractice claim could be pursued if "particular facts" support a claim of attorney incompetence. It will be very interesting to see what approach the Supreme Court decides to take. Stay tuned. For more on the story go here.

UPDATE - June 11/10 Last week, the New Jersey Supreme Court issued its decision in Guido v. Duane Morris allowing the legal malpractice suit to go forward holding that "the existence of a prior settlement is not a bar to the prosecution of a legal malpractice claim" arising from the settlement. For more on this story go to Law.com.

More on fake blogs and advertising on the internet

A few posts below this one you will find a note about companies that have set up "fake blogs" as means to create advertising on the internet. Here is a link to another comment (with lots of useful links) on this. Here is another one (with a good discussionin the comments) on disbarred lawyers selling themselves as "social media experts."

$5,000 fine for solicitation after airplane crash

Eric Turkewitz is reporting today that Detroit attorney Carl Collins has paid a $5,000 fine for his solicitation of victims in the wake of the February 2009 crash of Continental Flight 3407 near Buffalo According to the US Attorney's Office he sent letters out to victims' families 12 days after the crash, in violation of federal law that bans solicitations within 45 days of air disasters. This is the second such settlement regarding the crash, with New Jersey attorney Richard Weiner having likewise been fined $5,000 for chasing clients with letters. Go here for more on the story by Turkewitz and to The Detroit News for more on the story. For my earlier posts on solicitation issues created by the airplane crash in Buffalo, go here and here.

TV show review: The Deep End

"The Deep End," a new tv show about lawyers premiered Thursday night on ABC. The plot revolves around the lives of four first-year associates at a prestigious Los Angeles firm. I did not watch it so I can't comment but here is a link to a review by a number of first year associates who did watch it. In a nutshell, most of them thought it was terrible.

In answer to the question "what was the most unrealistic part of the show?" one of the associates interviewed said: "I think the most unrealistic part of the show was the casual attitude the one first-year had about having sex with a client and the casual attitude the partner who knew about it. . ." Another said "The most unrealistic part of the show had to be the managing partner telling an associate in his first week to blow off all the ethical rules so that the firm could maintain a big client."

I also liked three of the answers to the question "What advice would you give to characters on the show?" The comments I liked in answer to this question were: "Stop sleeping with clients", "read the ethics code" and "morals and ethics are not the same thing, so stop getting them confused."

Movie review: William Kunstler, Disturbing the Universe

Last Thursday, I posted an announcement about (and the trailer of) the new documentary on William Kunstler currently playing at the Gene Siskel Film Center (see here). I went to see it on Friday and here is my review.

I think the film is excellent. But let's start with the basics. In case you don't know, William Kunstler was one of the most important civil rights lawyers of his generation. He was either an activist or a lawyer with the Freedoom Riders, the protests against the Vietnam war, the American Indian Movement, the Attica prison revolt and others. He represented "the Chicago 8" accused of causing a riot during the Democratic Party Convention in Chicago in 1968 and activists of all types. He also represented common criminals, mobsters and defendants noone else would dare be associated with.

The documentary does an excellent job of providing all that information, but the most important thing about this movie, in my opinion, is that it is not a biography. The movie is really a memoir from the perspective of Kunstler's daughters who struggled to understand him and his passion for his work and his clients. Kunstler was a radical, a lawyer, an activist, a public figure and a celebrity. But he was also a father and a husband. These are a lot of roles to play at the same time, even for a giant like him.

I met Kunstler many years ago when he briefly visited Puerto Rico to represent some Puerto Rican independence activists. I was familiar with his work and had admired it for a long time and was, quite frankly, "star-struck" to make his acquaintance. When he shook my hand and asked me "how are you?" the one thing that immediately struck me was that I realized he actually cared. He actually really wanted to know how I was. He wasn't just looking for me to say "OK", he wanted to know if I really was ok. I am sure I just said "fine" or something like that, but I am also sure that if I had said I was worried about the case (or something else for that matter) he would have spent some time with me talking about it.

There is a little spot in the movie when one of the interviewees says that if someone shouted an insult at Kunstler, he would stop and ask the person why he felt that way and that Kunstler would then spend some time talking about it. I know that is true, because he was that kind of a person. Even if he met you for just a few minutes, those few minutes mattered to him.

And years later, you would realize that they mattered to you too.

That, I think, is also the experience the Kunstler sisters are trying to describe in the movie. As they were growing up, they did not fully realize (or understand) why their father would represent criminals, why people gathered outside their door to yell insults or why they got threats in the mail.

Now, years later, they have put together this movie to answer those questions in a very touching way. Their father did what he did because he cared. He cared about justice. He was not a perfect father or husband or lawyer or person. He made mistakes and bad decisions. But he would not sit idly by while others acted; he acted.

The movie has some great footage both of the social events of which Kunstler was a central figure but also of family life in the Kunstler home. I was touched by the little clips of home movies of him playing with his daughters when they were little and by a famous photo of him working with one of the girls, then just an infant, lying on top of the desk looking at him. To me the movie is not just about lawyering, activism, history and politics; it is also about personal relationships.

In my Professional Responsibility class, I try to spend just a little bit of time teaching my students how important it is to really understand our roles as lawyers in society and how important it is to be able to explain it to others. We could take a lesson from Sarah and Emily Kunstler. In "William Kunstler: Disturbing the Universe" they have given us a very personal memoir that shows why it is so important.

How not to practice law: sue your own client

Just about a year ago I discussed the case of US v Beltrán Moreno as a remarkable example of incomptence (see here). This was the case of the judge who imposed a lower sentence than that mandated by law, the prosecutor who did not catch the error and the attorney who appealed the case not knowing that if he won the appeal his clients would end up getting a higher sentence. I thought it would be hard to find a better example of complete incompetence.

Yet, here comes a report from the North Carolina State Bar on a lawyer who was disciplined for filing a claim on behalf on one client against another one of his own clients. Yes, you heard right. This genius sued his own client.

Now, this case does raise an interesting question. What is the best way to deal with this level of misconduct? I mean, what this guy did was clearly incompetent. What should we do about it? Should he be disbarred? ... censured? ... suspended?

I am not sure this is a case where it is in anyone's benefit to impose those kinds of sanctions, do you? I don't think that simply admonishing him is enough, but I also don't think that disbarring him is necessarily warranted (assuming the guy does not have a sustained record of misconduct or incompetence). How would you feel about imposing a suspension during which he would have to go back to law school to take a course on Professional Responsibility?

For a couple more details (there aren't that many) on the story go here.

Solicitation on the internet: using fake blogs to make search engines help lawyers who want to solicit clients

A few years ago, attorney Eric Turkewitz, the host of the very good New York Personal Injury Blog, commented on the practice of using blogs as a new for of solicitation. He noted how some lawyers placed the names of accident victims in the subject heading of their otherwise legitimate blogs in the hopes they would find the posts and hire them, for example. In that post, he discussed whether that practice was ethical. Take a look at that original comment by going here.

More recently, Turkewitz has written a new series of comments on websites that have created totally fake blogs that are really just a front to divert people to websites of lawfirms that pay for that service. They do it, as Turkewitz explains, "by simply regurgitating local accident or arrest stories and placing a call-to-action link at the bottom. Posts are filled with buzzwords to game Google that, if coupled with the call-to-action for a recent event, places them firmly in the camp of Solicitation . . . " "FindLaw" is the best example and Turkewitz comments on it and how it functions are very informative. His conclusion: "FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole." Two of his recent posts are available here and here (and they both have more links to more posts and information.)

Another aritcle on "the isolation of legal practice and suicide"

I don't want to be depressing with two consecutive posts on this subject but it just so happens that yesterday the Wall Street Journal Law Blog published another article on the state of profession called "On the Isolation of Legal Practice and Suicide" (available here).

High suicide rate within the legal profession

During the first week of class, I spent a little time talking about how it is easy to be unhappy with our work as lawyers if we don't enjoy what we are doing and if we don't really understand our roles as lawyers. We discussed how reports show some lawyers turn to alcohol or drugs and others seem to be depressed or withdrawn. In fact, the American Bar Association has reportedly found that suicide among lawyers occurs two to six times more than among the general population.

Unfortunately, reports of suicides are becoming more frequent. Almost a year ago, the former chair of Kilpatrick Stockton's Supreme Court and appellate advocacy practice, committed suicide in the firm's Washington, D.C., office after losing his job in a round of layoffs. In December the suicide of a Connecticut real estate lawyer was linked to a drop-off in his practice. And today, Law.com is reporting that a prominent partner in the Houston office of Baker & Hostetler has also committed suicide. Go here for the full story.

John Edwards and professional discipline for dishonesty?

In class the other day we discussed Model Rule 8.4's broad reach on the issue of "dishonesty." I also told my students of a certain Legal Ethics e-mail discussion list I belong to that generated about 20 messages in just a few minutes in response to a single line question: Should John Edwards be disciplned for his dishonesty regarding his infidelity and paternity of a child out of wedlock (here is a link to the story in the New York Times). Since that discussion was (and continues to be conducted) through a bunch of e-mails sent to the members of the e-list, I can't reproduce it here. However, some of the members of the list also participate in the Legal Ethics Forum and they took the discussion there, which you can now check out here. The question is whether dishonesty in personal matters should be considered conduct for which attorneys should be disciplined. When does dishonesty about an attorney's personal life show he or she should not be allowed to practice law? Can we use evidence of past dishonesty about personal issues to predict future professional misconduct?

Commercials

Just in time for my class on attorney advertising, Prof. Jonathan Turley has compiled a good selection of short commercials here. Take a look!

Documentary film about William Kunstler

William Kunstler was one of the most important and influential civil rights lawyers of his generation. (If you are in my class at JMLS, check the problem on page 309 of the casebook.) His daughters made a documentary about his life and work called "William Kunstler: Disturbing the Universe" which will be shown at the Gene Siskel Film Center, 164 N. State St. for a few days starting tomorrow (Friday Jan 22). Sarah and Emily Kunstler will attend the 7:45 p.m. screenings on Friday and Saturday and participate in audience discussion. For more information visit the film's Web site. Here is a trailer:

Sanctions for misconduct in process of "e-discovery"

Article here; opinion here.

Thanks to Legal Ethics Forum for the links.

How not to practice law: show up to court drunk

Here is another addition to our running list of simple rules on how NOT to practice law: show up to court drunk.

The Legal Profession Blog is reporting today that the North Carolina State Bar has suspended a lawyer for one year because the lawyer "appeared in the courthouse intoxicated and was loudly belligerent to courthouse personnel." The order is available here.

For an older example of a similar problem you can watch this series of videos of hearing to determine if lawyer is drunk while attempting to represent a client in court: part 1 (5 minutes), part 2 (9 minutes), part 3 (9 minutes), part 4 (10 minutes)

Here is a sample of some of the items on the "how not to practice law" list so far:

have affair with married woman, then agree to represent her husband in divorce

when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

try to recover expenses from your client after you agreed not to do it

provide the wrong citation to key cases so the judge goes nuts trying to find them

try to blackmail your opponents to get what you want

lie to the judge

take more work than you can handle

lie to the disciplinary committee

forge the judge's signature

ask for stolen property as payment for your services

rob a bank

be rude to the judge's clerk

don't proofread anything before you file it in court

One question; seven answers

Here is the question: “How can you sleep at night when you know you are representing a criminal defendant who is guilty?" Here is a link to a good response... with seven different answers.

Can prosecutor ask defense attorney to quit representing a client as part of a plea bargain for a different client?

Is it ethical for a prosecutor to make a deal to reduce a sentence for one defendant conditioned on an agreement by the defendant's defense lawyer to conclude his representation of another defendant? Here are two articles on the subject: here and here.

What do you have to do to get disbarred...?

I have criticized at least once (here) an Illinois hearing board for imposing light sanctions for misconduct.

Today I have to add to that criticism. The Review Board of the Illinois ARDC has rejected the Administrator's call for disbarment in the much -publicized case involving a lawyer who lied on his law school application, plagiarized a paper while in law school and altered his transcripts to give himself better grades in 20 courses in order to get a job in a big firm. I blogged about early reports on this case here and here.

In its report, the Review Board rejects the recommendation for disbarment and, instead, proposes an 18 month suspension.

The Legal Profession Blog has more on the story here. The Wall Street Journal Law Blog has more here. Go here for the Board's report.

UPDATE (1/16/10): Law.com has more on this story here.

Contingency fees might be coming to the UK

Tort reformers in the US often suggest that we should do away with the use of contingency fees and adopt the "loser pays" system typically used in England. This is so because without contingency fees many, if not most, victims of accidents would not be able to find representation and would be unable to recover compensation for their injuries.

However, the attack on the validity of the contingency fee system may now be substantially weakened by the fact a recent report prepared at the request of the English Judiciary has concluded that contingency fees should be allowed in the UK. In what one commentator called "the most controversial of all his recommendations," Lord Justice Jackson's Final Report proposes that lawyers be allowed contingency fees, acknowledging that the "arguments in favour of contingency fees ... outweigh the arguments against."

Go here for the full story by Law.com. Go here for a copy of the report itself. Go here for links to the preliminary drafts of the report.

Lawyers and social media

Simple Justice Blog has a good post today about "lawyers and social media" and other dangers on the internet.... It starts like this:

"When I was first asked if I would agree to provide information to a private business seeking to "teach" lawyers about social media, I responded with how much of their take they planned to donate to charity. If none, then why would they expect my free services so that they could turn a profit? My correspondent came back with a funny response, neither offended by my antagonistic response nor embarrassed by having been outed for her effort to free-ride. . . . So, against my better judgment, I agreed to answer a bunch of questions about lawyers and social media so that this for-profit entity could create a presentation to sell to lawyers as if it was CLE-worthy. It was a few minutes of my time, and more importantly given the other lawyers who were being asked to contribute, I realized that I was likely the only voice that would have anything to say suggesting that social media was not the panacea of wealth, success and prominence. The others were all social media cheerleaders, or made their living off of it.The presentation was completed and it's available . . . It's absolutely awful. It's a lie. It's nonsense. It's total and complete crap."

To read the full story go here. To see the slides of the presentation in question, go here.

Can flat fees be non-refundable?

I have blogged before about the increasing attention that the concept of flat fees is getting, particularly at a time when clients are looking for ways to lower their legal costs. Some commentators, I have said, are predicting the death of the hourly fees and predicting 2010 to be the year of the flat fee. I continue to be skeptical since hourly fees have been pronounced dead many times before and, like zombies, they continue to come back to life.

In any case, a number of jurisdictions are not helping the case for the adoption of flat fees by continuing to blur the distinctions between "flat fees" and "security retainers."

Let me provide some background here. I always thought of flat fees as a predetermined amount charged for the performance of a predetermined task. For example, I could say to the client that I would draft a contract for $500. Whether it took me 4 hours or 4 days, I'd get $500. Presumably, the attorney has figured out the amount to charge based on a number of factors including the going rate for similar work in the market and the amount of time that the lawyer expects the work to take. The risk for the lawyer is that if the work ends up taking up more than that amount of time, the return for the time spent diminishes. (In some cases the miscalculation may turn out to be so off that the lawyer would end up losing money compared to what he or she could have gotten for the work if he or she had charged by the hour.)

The advantage of the flat fee for the client is that the client knows exactly how much the job is going to cost and does not have to worry about having to pay more charges. The client also, presumably, gets a lot of efficiency since the attorney knows that the longer the work takes the less value he or she will end up earning. Finally, the client, again presumably, would be saving some money when compared to what the charges would be if billed by the hour.

Now let me introduce to you the concept of the security retainer: an amount of money that the client gives the attorney up-front from which the attorney deducts the value of services as the services are provided. That amount of money belongs to the client until it is earned and if there is any amount left when the task is finished, the attorney is obligated to returned the unearned portion to the client.

Now the question is, how is a flat fee different from the security retainer? Well, presumably the flat fee is earned when agreed to. The client pays the $500 for the contract, whether it takes the lawyer 4 hours or 4 days to prepare. Assume the lawyer charges $100 an hour. If the client was paying by the hour and the contract took 4 hours to prepare, the client would owe $400. But if the client agreed to a flat fee of $500 and the lawyer was able to finish in 4 hours, the client would have to pay $500. Is that unreasonable? In my opinion, not if there was a chance that the work would take more than 5 hours. That is why the client agreed to the flat fee. The client takes the risk of having to pay $100 over the hourly bill, for the chance that he will save a lot more if the work takes longer. In this particular case, it did not work out for the client, but in most cases it does.

The problem is that, concerned with the possibility that clients who agree to a flat fee may end up paying more than what they would have paid if they had agreed to be billed by the hour, some jurisdictions have held that flat fees are not "earned" until the work is done and that any unearned portion must be returned to the client. This is consistent with the basic principle of what I call "no money for nothing" - which means that a fee is unreasonable if it is an expression of value for services that are not provided. BUT this view also eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing.

The latest example comes from the District of Columbia where the District of Columbia Court of Appeals has held that flat fees do not become attorney property — and therefore must be held in trust — until earned by the attorney. The case is In re Mance, 980 A.2d 1196 (D.C. 2009). Go here for a discussion of this case and examples from other jurisdictions.

I've said it before and I will say it again, it is way too early to pronounce hourly fees dead.

Another case of prosecutorial misconduct

Here is yet another report of prosecutorial misconduct. Law.com reported a few days ago that a Santa Clara County, Calif., Superior Court judge cited "egregious" and "grossly shocking" prosecutorial conduct in dismissing a child sexual assault case last week. The judge's order is available here. The story in Law.com is available here. in the order, the judge states that the prosecutor's "numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed."

Is joint representation of criminal defendants per se a conflict of interest?

On December 29, the Illinois Court of Appeals published an interesting opinion that briefly touched on the question of conflicts of interest in the representation of co-defendants in a criminal trial. The case is called People v. Hatchett and it is available here.

In this case, the defendant argued that his conviction should be reversed because, among other things, he was denied effective assistance of counsel. The court rejected all the arguments and affirmed the conviction. The argument regarding ineffective assistance of counsel and the court's response present a couple of interesting questions.

In support of his claim of ineffective assistance of counsel, the defendant argued that defense counsel acted under a conflict of interests by representing both the defendant and another co-defendant during pretrial proceedings. Specifically, he argued that "defense counsel’s dual representation impeded the State from making a plea offer that would have benefitted one defendant against the interest of the other."

This is an interesting take on what constitutes a conflict of interest in the context of joint representation of criminal defendants. Let's start with the basics: IF the state had made an offer to one defendant in exchange for that defendant's testimony against the other, the attorney definitely would have been in a conflict of interest situation. However, in this case, the prosecutor did not make an offer, so the defendant's argument is that the prosecutor would have made an offer had it not been for the dual representation by defense counsel. In other words, the argument is that the defendant did not get the benefit of a plea bargain offer by the prosecutor because the prosecutor did not want to create a conflict of interest for defense counsel.

Given that it is not uncommon for prosecutors to make similar offers regardless of the defendants' representation arrangements, I am not sure the argument is particularly strong.

But let's take it at face value for the moment and consider the consequences. If the defendant's position were correct, it would mean that joint representation in criminal cases would, by definition, in all cases, be a conflict of interest that would result in reversal of a conviction. Why? Because if the prosecutor made an offer, there would be a conflict and if the prosecutor did not make an offer, well, there would be a conflcit too!

But wait, there's more! Interestingly, the court did not consider the argument at all. It held that "this issue is not appropriate for resolution in the context of this direct appeal. Rather, this issue should be appropriately raised in a postconviction proceeding in which the defendant could submit affidavits and present extrinsic evidence at a hearing to determine whether a conflict of interests existed in his trial representation."

Here is the interesting question: given that the defendant's argument is based on the fact that the prosecutor did not make him a plea offer, whose affidavit/what evidence would the defendant need to present to prove the existence of the conflict? Wouldn't the defendant need to get the prosecutor to testify that the prosecutor would have made an offer had it not been for the fact that defense counsel was representing more than one defendant? Good luck with that!

Illinois Appellate Court misses chance to point out prosecutorial misconduct

Sometimes cases catch my eye for what they fail to say rather than for what they do say... Such is the case with a recent decision out of the Illinois Court of Appeals called People v. Moore which is available here.

In this case, the defendant argued he was denied a fair trial and that his conviction should be reversed because, among other reasons, the prosecution made a number of improper comments during opening and closing statements.

One of the statements in question was a remark that the defendant gave another person a car in exchange for the other person's silence about the defendant’s alleged criminal conduct. The prosecutor then added the following: "I have no doubt that [the car] was a gift for his silence." Even though the prosecutor did not present any evidence that the car was given as a gift, he brought it up again in closing saying that the defendant gave the car to the other person as a gift, “maybe sharing in the proceeds, maybe trying to insure their silence."

The comments were improper. When addressing the jury during an opening or closing statement, a prosecutor simply cannot say he or she "has no doubt" about anything. When the prosecutor expressed he had no doubt about the meaning of the defendant’s conduct during the closing statement, the defendant's attorney objected. The trial judge should have granted the objection and admonished the prosecutor or said something to the jury about it.

The prosecutor violated Illinois Rule of PC 3.4(e) which explicitly states that a lawyer shall not ". . . allude to any matter . . . that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. . ."

So what does the court do about all this? Nothing. While recognizing, in the abstract, that a prosecutor’s statement of personal belief is improper, it did not make any mention of the fact that the prosecutor violated the rules of professional conduct. The court also gave the prosecutor a pass on the other statement even though it stated in passing that the prosecutor's claims that the defendant tried to buy the silence of a witness was “unfounded.”

Instead, the court limited itself to solving the argument as it related to the possible reversal of the conviction. Citing precedent cases, the court explained that prosecution comments do not require reversal unless they result in "substantial" prejudice, which has been defined as a substantial impact on the jury's verdict. Since the court did not think the record supported this conclusion, it held the argument was insufficient to support a reversal.

Regardless of whether that is the correct result, I think the court should have admonished the prosecutor and explained the misconduct to make sure other prosecutors will not make the same mistake in the future. The court essentially took a view that can best be described as “no harm – no foul.” Unfortunately, this type of approach does not do much to teach the participants in the criminal justice system the limits of proper advocacy.

Himmel in trouble again

Back in March I reported a hearing board filed an opinion recommending to suspend James Himmel, the protagonist of In Re Himmel, the famous case about the duty to report another lawyer's misconduct, for 30 days because of his neglect of a client's case. See here.

The Legal Profession Blog is reporting today (here) that the Review Board has adopted the recommendation. The opinion is available here.

Another story related to how using social media can cause problems for lawyers and judges

I have posted recently on different problems that can arise related to lawyers and judges using social media such as facebook. See here, here and here, for example. As I reported in one of those posts, the Florida Judicial Ethics Advisory Committee recently issued an opinion holding that a judge can not add lawyers who may appear before the judge as "friends" on a social networking site nor permit such lawyers to add the judge as their "friend."

On a related topic, Law.com is reporting today that a judge in Georgia has resigned within days of the publication of information about his Facebook dialog with a woman who was a defendant in a matter pending before his court. As Law.com reports, the judge's "departure from the bench effectively ends inquiries being made in the circuit from the Georgia Judicial Qualifications Commission, which investigates complaints against judges."

"I call it a retirement," the judge reportedly told the Fulton County Daily Report.

Go here for the full story.

More on the DOJ plans to prevent prosecutorial misconduct

Yesterday I reported (here) that the Federal Dept. of Justice recently issued some guidance memos for all federal prosecutors regarding their obligations when it comes to sharing information with criminal defense lawyers.

Here is a link to the DOJ memos.

Also, today the Wall Stree Journal Law Blog published an article that reviews some of the cases that created the need for the DOJ to go back to basics and that puts the DOJ memos in proper context. The article is called "DOJ Offers Guidance to Prevent Prosecutor Errors: But Will it Work?" and it is available here.

Finally, the White Collar Crime Profs Blog has a short comment on the memos here called "New DOJ Discovery Policies Fall Short," in which Prof. Ellen Podgor concludes "[i]t is good to see DOJ trying to do a better job than past administrations, but what really needs to be done is setting forth clearer rules and statutes by independent parties, as opposed to a working group . . . so that our system does "do justice". . .

When is a settlement valid?

The New York Personal Injury Blog and the New York Injury Cases Blog are reporting on the following interesting case.

Quoting from the NYPI Blog: "At a Brooklyn medical malpractice trial the defendant, at some point, offered 150K to settle. Then, while the jury was deliberating, the plaintiff tried to accept. But a note had been passed to the clerk that the jury had reached a verdict.Did the judge quickly confirm an agreement between the parties and put the settlement on the record? Nope. She did the opposite. And not only did the judge insist on the verdict being taken, but defense counsel remained silent, perhaps smelling a defense verdict after a short deliberation.This exchange ensued in open court between plaintiff's counsel and the judge:

Mr. Jordan: Could I put my request on the record?

The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.

Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?

The Court: Because I said what I have to say. Let's proceed

The jury came back with a $1.45M verdict.

The judge then proceeds to toss out the verdict and asserts that the settlement -- the one defense counsel refused to confirm and she refused to put on the record -- controlled."

Clearly, the plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. The question is: had the case already been settled for $150,000 or would the $1,450,000 verdict stand?

Was this an example of a plaintiff trying to wiggle out of a binding agreement that he wished he hadn't made or an example of the defendant's lawyer trying to have it both ways – keeping silent hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000?

The court of appeals held that given that defense counsel had not acknowledged that a settlement had been reached and that the court had not recorded the verdict, there was no legally enforceable settlement and the verdict stands. The opinion, available in Westlaw already, is called Diarassouba v. Urban.

Is is the attorney-client relationship still an attorney-client relationship if the client takes control of all aspects of lawyering?

Law.com is reporting (here) on an interesting case where the court held that the client (a non-practicing attorney) sought to contractually reserve the right to completely control all aspects of the representationg and yet retain the right to hold him liable for legal malpractice or breach of fiduciary duty. The court held he could not have it both ways. Having insisted on a contract provision with his lawyer that would give him last say over all decision making, the court held the provision turned his attorney/client relationship into an employee/employer relationship that prevented him from suing for malpractice. The unpublished opinion is available here.

What do you have to do to get disbarred...?

I have often complained about the inconsistency within and among jurisdictions when it comes to sanctions and about the ineffectiveness of imposing light sanctions for serious misconduct. Go here and scroll down for a number of posts on this.)

Today I have two more stories to add to this topic.

The first one involves a judge in Tennessee who apparently routinely ordered visitors in his courtroom arrested and forced to submit to drug testing when the judge just felt “a hunch.” The judge believes that he can simply arrest on every hunch he has as what he calls the “routine policy of the court.” The Supreme Court’s Judiciary Court censored his conduct and ordered Moore to “never violate a person’s constitutional rights.” ... as if that was just a simple mistake or something trivial... Despite his admission of misconduct, the judge will be allowed to continue to rule in cases despite his total lack of respect for basic constitutional principles. (As an aside, however, one of the people whose rights the judge violated has sued him in civil court.) Go here for more on this story.

The second story is even worse. This case involves an attorney who failed to do the work he was hired to do for a client, then gave the client a forged and falsely notarized document and assured the client (also falsely) that it had been recorded. When all the lies were exposed, the attorney admitted his actions to his firm and attributed them to stress, his use of cocaine and drinking. The law firm fixed the problem at a substantial cost to the firm and suspended the attorney. When the attorney did not report his own misconduct to the authorities, the firm reported him. He responded to the bar complaint by lying about pretty much everything. He lied about his ongoing cocaine abuse and treatment. He had dropped out of a treatment program by falsely claiming that his father had died. He postponed a meeting with Bar Counsel by falsely claiming that his fictitious nephew had been killed in a traffic accident.

So, in light of the undisputed evidence of neglect, forgery, lies to a client, severe harm to the law firm, lies to the disciplinary authorities and lies to the treatment facility, the board found that the attorney "had trouble telling the truth." Wow! Now that's an understatement. Antonio could have figured that out! (For those of you who are not my students: Antonio is my 5 year old son).

The board also found that the attorney's substance abuse did not cause the misconduct and that the attorney had failed to establish any significant support for mitigation

Yet, the Board rejected a recommendation for disbarment in favor of a three year suspension.

I agree with Mike Frisch, of the Legal Profession Blog, when he says "I understand that the proposed sanction is not all that different from a disbarment. However, disbarment is a meaningful sanction that identifies the type of behavior that a self-regulating profession must condemn. If an informed public infers that a big-firm lawyer got special treatment, so much the worse. This is a disbarment case." Go here for more on this story. Go here for a copy of the decision. (Thanks to the ABA Journal.com for this link.)

Thanks to Jonathan Turley for the information on the first case and to the Legal Profession Blog for the information on the second one.

The limits of proper argument; no prosecutorial misconduct for reference to religion

The Legal Profession Blog is reporting that the Oklahoma Supreme Court has affirmed a death penalty sentence in a case in which the defendant alleged prosecutorial misconduct because of the prosecutor's closing argument. The court rejected the claim of prosecutorial misconduct finding that the prosecutor's brief reference to heavenly judgment was invited by the defense argument in the sentencing phase. The court held that the prosecutor’s brief personal reflections about the forgiveness of God did not, as the defendant "hyperbolically contends, reassure jurors “that they, too, would be forgiven for imposing the death penalty;” nor did it “encourage the jury to follow biblical standards rather than the Court’s instructions." Go here for the text of the opinion.

Parties agree to settle and dismiss case re immunity for prosecutorial misconduct pending before Supreme Court

As I had reported previously (here, here, here and here), last November the Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington, which deals with whether prosecutors should be granted absolute immunity for their conduct in the process of investigating (rather than prosecuting) a case. I was eagerly awaiting the decision in this case since it deals with issues I cover in the two courses I teach (torts and professional responsibility). However, it has just been announced that there will be no opinion forthcoming because the parties have agreed to dismiss the case. The county has agreed to pay $12 million to the plaintiffs. The press release from the respondent’s counsel describing the settlement is available here. For a comment on a similar case out of the Second Circuit go here.

Thanks to the Legal Ethics Forum for the information.

How not to practice law: have affair with married woman, then agree to represent her husband in divorce

I haven't added anything recently to our running list of examples on how not to practice law, so here is a recent case that caught my eye.

Suppose an attorney has an affair with a married woman. Then the husband of the woman hires the attorney to help him get a divorce from her. Can the attorney take the case? Should the lawyer inform the client of the affair before taking the case?

Those are the facts of a case mentioned in the Tennessee Board of Professional Responsibility website. It states (here) that a Memphis lawyer was suspended for one year for engaging in a conflict of interest "by failing to inform his client that he had an affair with the client's wife prior to representing him in a divorce proceeding against the wife."

Thanks for the Legal Profession Blog for the link.

Article on access to representation

Here is a link to an article by the Chief Justices of California and New Hampshire in which they endorse the trend towards unbundling and encourage other innovations to increase access to the civil justice system.

Thanks to Andrew Perlman of the Legal Ethics Forum for the information and link.

Are Michigan public defenders violating their clients constitutional rights?

Legal Ethics Forum is reporting that the Michigan Supreme Court has before it a case where the plaintiffs contend that the public defender systems in their counties are so bad that poor people are pleading guilty because, for all practical purposes, they are given no other choice. More precisely, the issue is whether cash-strapped public defenders are violating the constitutional rights of defendants by encouraging plea bargains too eagerly, as opposed to vigorously fighting the charges. Go here for the full story.

DOJ issues plans to prevent prosecutorial misconduct

Back in October I reported that after a number of instances of prosecutorial misconduct or ineffectiveness in high profile cases, the Dept of Justice announced plans to prevent prosecutorial misconduct (here).

Today, the Blog of the Legal Times is reporting that the DOJ has issued three memos—including a detailed guidance memo for all federal prosecutors—that set forth the steps the department has taken and will take to ensure that prosecutors assess and meet their obligations when it comes to sharing information with criminal defense lawyers. Go here for the full story.

For posts on the many cases of prosecutorial misconduct reported in recent months, go to my section on prosecutors.

Comment on issue of judges using facebook and other social media

I recently posted a couple of stories on whether it was unethical for judges to "socialize" with lawyers through facebook and other social networking media. See here and here. Here is a link to an article by Prof. Anita Ramasastry (University of Washington School of Law) in which she argues that "Florida's ban on judges' "friending" lawyers on Facebook is the right call."

Comment on the more recent news re prosecutorial mishaps

The Wall Street Journal Law Blog has a short comment on the dismissal of charges in the Blackwater case. Go here for the story.

Trying to catch up!

For the past few weeks I was pretty busy preparing exams, grading exams and enjoying the holidays, so I was not very good at keeping the blog up to date. I am now back in business and I will try to catch up over the next few days....

Prosecutorial conduct results in dismissal of charges... again

2009 may have been a record year for reported cases regarding prosecutorial misconduct. If you go to my section on Prosecutors (here) you will find a list of examples from the past few months. And now you should add this piece of news to the list: Citing repeated government missteps, a D.C. Federal District Court Judge has dismissed all charges against several Blackwater guards who were accused of voluntary manslaughter and various serious firearms offenses in connection with a September 16, 2007 shooting of civilians in Baghdad. For more on the story go here and here. The case is US v Slough (available here).

Pres. Obama's strange nomination for legal aid agency

A few days ago, President Obama announced his intention to nominate Sharon Browne to the board of directors of the Legal Services Corporation (LSC). This nomination is a bit baffling. Ms. Brown is a principal attorney and member of the senior management at the conservative Pacific Legal Foundation, an organization that opposes much of what Legal Services stands for and that has supported attempts to block funding for Legal Services agencies. The National Lawyers' Guild has formally called on Pres. Obama to withdraw the nomination. Go here for more on the story and here for the NLG's press release.

Another end of the year top 10 list

A few days ago I commented that this is the time of the year when you start to see "top ten lists"... Here is another one: New York Personal Injury Blog's Year in Review list. It has links to the blog's favorite items of the year. There is a lot of interesting stuff here. Some are related to torts, some are related to professional responsibility and ethics. Take a look.

Wash State Bar Approves Attorney's Plan To Split Fees With Foreign Law Consultant

A recently released Washington bar's ethics committee concludes that lawyers in the state of Washington may accept referrals from foreign law consultants and hire them to provide translation and paralegal services to the referred clients. The division of legal fees between licensed Washington attorneys and foreign lawyers is not prohibited, but the committee cautioned that counsel must structure the arrangement in a way that does not facilitate the consultant's unauthorized practice, and that the lawyer cannot use the arrangement to get around the ban against paying for referrals. The Opinion (Washington State Bar Ass'n Rules of Professional Conduct Comm., Informal Op. 2201) is available here.

Whistleblower gets recognized as most influential person in business ethics

John Kopschinski, a former sales rep whose lawsuit led to the record breaking, eye rolling, jaw dropping $2.3 billion settlement, exposed pharmaceutical giant Pfizer's illegal sales and marketing efforts to promote its Bextra painkiller, was named the most influential person in the world of business ethics by the Ethisphere Institute. Go here for more on the story.

More problems in New York

A few days ago, I posted a story about the apparently prevalent practice among the NYPD to falsify records. (See two posts below this). Now comes news that District Attorneys in 44 of New York's 62 counties should review scores of closed criminal cases because a forensic scientist working for the state police routinely failed to perform mandatory tests on crime scene trace evidence like hair fibers and then fraudulently wrote up results. Go here for the full story on Law.com.

End of the year "top ten lists"

Tis that time of the year... As we get closer to the end of the year, we will see "top ten lists" pop up all over ... "top ten cases of the year"... "top ten worst decisions"... "top ten things to keep an eye on for next year" ...and so onIn fact, I promise that I will prepare my own top ten list at some point and publish it here, but for now I am going to link to the ones that start coming up here and there.

And here is the first list of the year. It comes from the Legal Ethics Forum Blog and it is called Top Ten Legal Ethics Stories of 2009. It is an excellent post which includes several lists, actually: the main list is the most important stories, but then there is a list of "honorable mentions" which includes cases, 'scandals', rules changes and ethics opinions.

I don't think there is anything to add to this very carefully prepared collection!

ps: one of the stories in the honorable mention category links to a post that mentions me and one of my comments on this blog!

Famous federal judge claims NYPD has record of falsification by arresting officers

Famous federal judge Jack Weinstein has lashed out at the New York Police Department, accusing the department of a proven record of “widespread falsification by arresting officers.” In a four-page decision refusing to throw out a multimillion dollar suit against the city filed by two men who were busted on bogus narcotics charges, Weinstein wrote that "[i]nformal inquiry by [myself] and among the judges of this court, as well as knowledge of cases in other federal and state courts ... has revealed anecdotal evidence of repeated, widespread falsification by arresting officers of the New York City Police Department." He said that while the vast majority of cops don't engage in crooked practices, it was common enough to be an institutional problem. For more on this story go here and here.

An important related question has to be what role, if any, are prosecutors playing in the creation, development or use of falsified evidence?

Podcast on value billing as an alternative to hourly fees

Once again, there is a lot of talk about the death of the billable hour and the rise of alternative billing methods. Here is a link to a podcast of a discussion on the subject of value billing.

Transcript of the order re prosecutorial misconduct

Yesterday I posted that prosecutorial misconduct resulted in dismissal of charges in a high profile stock-option backdating case. Here is the transcript of the decision (courtesy of the Wall Street Journal and the Legal Ethics Forum).

Prosecutorial misconduct results in dismissal of charges

A federal judge has dismissed fraud and conspiracy charges against Broadcom Corp. co-founder Henry T. Nicholas and former Chief Financial Officer William Ruehle in a stock-option backdating case because of prosecutorial misconduct. The prosecutors tried to prevent three key defense witnesses from testifying, improperly contacted attorneys for defense witnesses and leaked information about grand jury proceedings to the media. More on the story here.

Congress boosts Legal Services ...but not much

Last September, the Legal Services Corp., which distributes funding nationwide for civil legal representation of the poor, released a report saying about half of Americans who need civil legal assistance are not able to get it because of limited resources. Sen. Tom Harkin (D-Iowa) proposed increasing the LSC's budget up to $750 million, an increase of 92.3 percent from last year, but, the 2010 spending package on its way to President Barack Obama's desk will give the LSC a much smaller boost. The LSC will receive $420 million this fiscal year, up from $390 million last year (a 7.7 percent increase). This is far less than many had hoped for--but an increase nonetheless.

On the other hand, the new appropriations bill introduces a very positive change. In 1996, President Clinton signed a bill that, among other anti-legal services provisions, barred legal services programs funded through the federal Legal Services Corporation from seeking statutory attorney fees in cases that they won or settled on behalf of their impoverished clients. This provision hurt already cash-strapped poverty law programs around the nation. The new appropriations bill will allow the agency's grant recipients to pursue attorney fees for the first time in more than a decade. Go here for more on this story.

More allegations of prosecutorial misconduct; Second Circuit rules protected by immunity

A criminal defendant who was wrongfully convicted of murder cannot sue prosecutors for their delay in disclosing the exculpatory results of post-conviction DNA test results, the U.S. Court of Appeals for the Second Circuit held Nov. 13 in Warney v. Monroe County, available here.

The court decided that the prosecutors were acting in furtherance of their role as advocates for the state when they made their decision regarding the timing of their disclosure, thus entitling them to absolute immunity from civil liability for their conduct.

"Advocates for the state"? Hmm; I thought prosecutors are supposed to be "ministers of justice" not mere advocates....

In this case, a mentally retarded man was convicted of murder. While he pursued post-conviction relief, the prosecutor received a written report revealing that—contrary to their theory at trial—all the blood at the scene (other than the victim's) belonged to one person and that one person was not the defendant. The prosecutors did not, however, disclose this information until 72 days after they had received the initial report. Eventually, the defendant was released and he filed a federal civil rights lawsuit claiming that prosecutors' foot-dragging prolonged his incarceration in violation of his right to due process.

The Court found the prosecutor was functioning as an advocate, rather than as an investigator or administrator, when he engaged in the conduct at issue and, thus, is protected from liability.
The Second Circuit observed that distinguishing between advocacy and administration is especially difficult with respect to prosecutors' conduct in collateral proceedings because “the ‘judicial phase’ is technically finished” but held that the prosecutor deserved “absolute immunity because his conduct was part of "the prosecutor's role as an advocate for the state.”

Thanks to the Legal Ethics Forum for the information.

Book Review: The Idiot's Guide to the Criminal Justice System

Here is a link to a review of the book The Complete Idiot's Guide to the Criminal Justice System. I have not seen the book, so I can't say whether I agree with the review, but I thought it was interesting. Hint: the reviewer did not like the book. Among other things, he says, "As I am politically against burning books, I won't suggest it. Bury it. Bury it deep. Oh what the heck, if ever a book needed burning, this is it."

More on judges using facebook

The Legal Profession Blog is reporting that the South Carolina Advisory Committee on Standards of Judicial Conduct has published an opinion that concludes that a judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate. See here.

Note how this is a different approach than the one taken by the Florida Bar in an opinion I mentioned a couple of days ago. See here. For an article in the New York Times about the Florida Bar opinion go here.

New rule re conditional admission in Florida

The Legal Profession Blog is reporting today that the Florida Supreme Court has announced the adoption of a new rule that limits the confidential conditional admission feature to persons who are permanent Florida residents, who will engage in practice primarily in Florida and who "can and will be monitored in Florida." the court notes that such admission is a "special admission status sometimes offered to applicants with a history of drug or alcohol abuse or psychological problems..." The change is immediate and to be applied prospectively.

Amendment to cap attorney's fees as part of health care reform defeated

The PopTort is reporting that an amendment to the Senate health care bill that would have imposed national wage caps on fees for attorneys' representing injured patients was defeated by a strong bi-partisan vote of 32-66. As the story in the PopTort states, "[c]apping . . . fees is a major agenda item of the so-called “tort reform” movement. The goal is to keep injured patients from getting decent legal assistance . . ." Go here for the full story.

Mass Sup Ct eases restrictions on judges' ability to explain decisions in public

The Massachusetts Supreme Judicial Court announced a new judicial conduct rule today that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by an ad hoc study committee it appointed in 2008, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics. Go here for the full story and links to the relevant documents.

It's not so bad to violate a rule if you have a good reason for it (part 2)

Last summer I posted a comment with the same heading as this one (here) (hence the "part 2"). In it, I explained my position that it is wrong for a court to apply a rule in a way that suggests that its violation is not so bad because the attorney had a good reason to violate it. I think this approach undermines the reason for the rule in the first place. If you don't like applying the rule, change the rule. But don't say that it is okay to violate the rule if there is a good reason to do it.

Here is another example, reported by the Legal Profession Blog:

An Arizona hearing officer has recommended the censure of an attorney who arranged loans to clients through an arrangement by which the loans were made by another attorney secured by promissory notes. The attorney lent money to the other lawyer from personal accounts when the other lawyer did not have money to fund a loan. The attorney knew that the other attorney made loans through checks written on a lawyer trust account. The hearing officer found that the arrangements violated current client conflicts rules and business transactions with client provisions. There was no harm, the lawyer had acted negligently and the misconduct was motivated by concern for the welfare of clients. He was "very remorseful" and held an erroneous belief that "what he and [the other lawyer] were doing was okay...

There are two things I find troubling here. First, there is the naive (at best) notion that the conduct in this case was merely negligent and, second, is the notion that a violation of a rule is somehow "less bad" if it is done with good intentions, as I stated above.

Judges using Facebook or other "social media"

The Florida Judicial Ethics Advisory Committee has issued an opinion on ethical issues relating to judges' use of on line social networking sites. Interestingly, it holds that a judge can post comments on a social site as long as the publication of such material does not otherwise violate the Code of Judicial Conduct, BUT a judge can not add lawyers who may appear before the judge as "friends" on a social networking site nor permit such lawyers to add the judge as their "friend."

Thanks to the Legal Profession Blog for the information and link.

UPDATE (12/9/09 at 7:32pm): here is a link to a story in the Wall Street Journal Blog on the same subject.

More prosecutorial misconduct

There have been a lot of reports of prosecutorial misconduct this year. Go here so see my posts on this subject. Here is another recent example, as reported by the Legal Profession Blog: The Arizona Supreme Court has adopted the recommendation of a hearing officer of a 30 day suspension and probation of a prosecutor for a wide and persistent array of ethics violations during a trial. The hearing officer had found that the prosecutor had, among other things, argued facts not in evidence, asked improper questions, expressed personal opinions about guilt and otherwise behaved in a manner that should provide a training lesson of how not to conduct a criminal trial. In final argument, he stated to the jury: "Ladies and Gentlemen, you've been presented a case that is as strong a case as a prosecutor can present you in a court of law." In his rebuttal argument, he told the jurors "The law requires that I not prove this case beyond all doubt, but only that you have to feel comfortable in your decision that [the defendant] is guilty."

D.C. considers IOLTA program

The Blog of Legal Times is reporting that the District of Columbia Bar is looking to join the more than 40 state bars around the country that have made participation in a trust program mandatory. Proposed changes to the D.C. Rules of Professional Conduct governing interest on lawyers' trust accounts, or IOLTA, are under review at the D.C. Court of Appeals. Click here for a copy of the D.C. Bar’s proposal, submitted to the court in September. More on the story here.

Supreme Court Sides With Florida Inmate on Ineffective Assistance

On Nov 30, the Supreme Court issued a powerful unsigned "per curiam" opinion agreeing that the ineffective assistance of counsel for Florida death row inmate George Porter Jr. prejudiced the sentence he received after his murder trial in 1988. The Florida Supreme Court and the U.S. Court of Appeals for the 11th Circuit had previously rejected his ineffective assistance claim. The case is Porter v. McCollum and it is available here,

Opinion on duty to disclose information related to identity theft

The judge who ruled that lawyers can't be forced to comply with new federal rules meant to prevent identity theft released his written opinion on Dec. 1. More on the story here. The opinion is available here.

NGOs request disbarment of torture memo lawyers

On Friday, November 27, 2009, Disbar Torture Lawyers, www.disbartorturelawyers.com, a group of NGOs representing over a million members, filed complaints with the Washington, D.C. Board of Professional Responsibility requesting disbarment of Bush Administration attorneys John Yoo, Michael Haynes, and Alberto Gonzales. Go here for more on the story.

New cases on ineffective assistance of counsel

Go here and here for recent posts on ineffective assistance of counsel (and links to some of the cases). Thanks to the Legal Ethics Forum for the links.

Update on the story re deputy to took documents from attorney's file without permission

Go here for the latest update. If you don't know what the story is about, go here and follow the links back to the original story (and video) (here).

Taking a break from blogging

Loyal followers of this blog may have noticed fewer posts during the past couple of weeks. That's because I have been busy wrapping up the semester (preparing and teaching the last few classes, writing exams, dealing with faculty committee assignments...) and family preparations for the holidays! I am almost done preparing my exams and will have a few days to try to catch up with my blogging before I start grading exams. Once I start grading, though, I will again take a break from blogging for a little while. So, don't worry if you don't see much activity in the coming weeks. I will catch up eventually. Thank you for your support!

Virginia discusses new rule on sexual relations with clients

The Virginia State Bar has proposed an ethics opinion that concludes that lawyers should refrain from having sexual relationships with clients. However, some have criticized it for not going far enough, while others are saying it goes too far. Go here for the full story.

Thanks to the Legal Ethics Forum for the link.

Attorney's fees and health care reform

Here is a link to a cloumn from The Modesto Bee (November 29, 2009 edition) discussing how attorney’s fees may play a role in the national health care debate going on in Congress. For more on the story and some comments go here.

Deputy who stole documents from defense attorney goes to jail

A few days ago, I posted and commented on a video of a deputy stealing a document from a defense attorney in the middle of a court proceeding in Arizona. (See here and here). As you may recall, the deputy was found guilty of contempt for his actions and was ordered to issue a public apology. He refused and has been sentenced to serve some jail time.

The deputy's conduct was outrageous and now comes word that the County Attorney has agreed to appeal the decision of the court and defend the deputy's conduct. Prof. Jonathan Turley criticizes this decision severely here.

For more on the story, go here.

Delay in providing retainer agreement costs firm six figures

Delay in providing clients with a full copy of the applicable retainer agreement for their matter has cost a New Jersey law firm a six-figure sum. Go here for the full story.

Book Review on "A Modern Legal Ethics"

Profs. Monroe Freedman and Abbe Smith, authors of Understanding Legal Ethics, a book I often recommend to my students, have written a review of Daniel Markovits's A Modern Legal Ethics which will be published in the Michigan Law Review.

Here is an abstract of the review, which is titled, Misunderstanding Lawyers' Ethics: "The authors argue that Daniel Markovits's recently published book, A Modern Legal Ethics, fundamentally misunderstands what lawyers do on behalf of clients in an adversary system, and how lawyers feel about it. Freedman and Smith argue that not only is Markovits mistaken about the widespread unhappiness of lawyers, he is also misguided in pointing to “lying” and “cheating” as the source of unhappiness and “guilt.” Moreover, the authors argue that Markovits’s proposed “ethic” for rescuing the legal profession is superficial wordplay—ironically derivative of the adversarial advocacy he condemns."

Thanks to the Legal Ethics Forum for the information.

Court of Appeals for the 9th Circuit upholds restrictions on legal aid funding

In 1996, Congress attached certain rules to the budget of the Legal Services Corp., which funds lawyers for the poor in civil cases, in order to restrict Legal Aid lawyers' representation of their low-income clients. The restrictions, contained in each succeeding budget, prohibit the lawyers from filing class-action suits on behalf of numerous clients. They also bar attorneys from seeking fees that are usually awarded to the winning side in cases involving individual rights, and from lobbying for changes in the law. The rules were challenged in court but this past Monday they survived a federal appeals court test Monday in San Francisco. Go here for the full story from the San Francisco Chronicle.

The year of the flat fees?

Commentators continue to announce the death of the billable hour. This short news item from the Wall Street Journal Law Blog has a bit of evidence to back it up. I think it is too early to announce "the year of the flat fee" but I may be wrong.... Go here for the full story.

UPDATE: Here is a link to another story on the same topic.

Illinois Appellate Court reverses conviction for violation of right to counsel

The appellate court of Illinois (second district) has just issued an opinion in which it reversed a conviction because the trial judge frailed to admonish the defendant of his right to counsel before allowing him to represent himself. For this reason, the Court held that the trial court deprived the defendant of his right to counsel at a critical stage of the proceedings and remanded the case for a new trial. The case is called People v. Vernón and is available here.

Editorial on the death penalty case tried by a judge who was having an affair with the prosecutor

Back in September I commented on the news that the Texas Court of Criminal Appeals — the state’s supreme court on criminal matters — ruled that a man facing the death penalty would not get a new trial despite the fact that the prosecutor and the judge were involved in a romantic affair during the trial. See here.

A few days ago, the National Law Journal and Law.com published a short editorial on the case here.

Should attorney be disciplined even though malpractice claim is dismissed?

Here is an interesting fact scenario courtesy of the Legal Profession Blog: a client retained a lawyer to pursue an employment discrimination claim. The attorney did not respond to the employer's motion for summary judgment and the case was dismissed. The client then turned around and sued the attorney for malpractice arguing he was negligent in handling the case, but the trial court dismissed the complaint because the plaintiff could not establish the element of cause in fact. Because the original case appeared to be very weak, it did not look that the client would have won the original case had it not been for the negligent conduct of the attorney.

As any first year torts student knows, this is the so-called "case within the case" problem that legal malpractice plaintiffs face. They have to argue and prove that they would have won the original case and this is extremely difficult to do in most cases.

Interestingly, the court found a way around it. The court remanded on a contract claim to consider damages for the lawyer's failure to do the work for which he had been paid.

There is another point I find interesting about this scenario and that is whether the facts support the imposition of discipline. Does the fact that the client could not support his claim of malpractice mean that the attorney's conduct should be 'excused'?

Obviously not. If the attorney's conduct reflects that he violated his duties of competence and diligence (and it certainly looks like it does in this case), the court should refer the case to the disciplinary authorities regardless of the ruling on the malpractice question. In this case, it appears that there had been a disciplinary hearing already but the court does not explain what had been the basis for it.

The opinion is available here.

More on whether humiliating punishment is proper prosecutiorial/judicial discretion

A few days ago, I posted a comment on the issue of whether humiliation is a proper punishment in our criminal justice system or whether it should be considered an abuse of prosecutorial or judicial discretion. My comment originated in a story originally published by Prof. Jonathan Turley in his blog. A couple of days later, Prof. Turley expressed his view on this topic in an editorial published by USA Today. I am copying it here in full:

Shame is back in the United States with a vengeance.

Across the country, judges and prosecutors and jailers are freelancing by imposing their own brands of retributive justice: forcing people to wear humiliating clothing, parade in public and even sleep in doghouses. The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.

Two weeks ago, citizens of Bedford, Pa., were able to gawk at Evelyn Border, 55, and her daughter, Tina Griekspoor, 35. The two had been caught stealing from a child and were told by the local prosecutor that unless they performed a publicly humiliating act, they would be hit with heavy charges. They agreed to appear in front of the courthouse holding signs reading, “I stole from a 9-year-old on her birthday! Don’t steal or this could happen to you!” Such scenes are being repeated across the country as citizens are told to choose between degrading public acts or long jail sentences.

Shaming punishments are a return to primitive practices common before the American Revolution, when people were forced into public pillories, marked with scarlet letters or forced into forms of public humiliation, including degrading signs. These shaming punishments declined after the Founding Fathers sought to modernize the criminal justice system and to require consistent punishments.

Gum, manure and doghouses

Elected state judges have found that many citizens relish the humiliation of others. Georgia Judge Rusty Carlisle does not deny that he is trying to degrade people who come before him. In one case, a defendant seemed “kind of cocky” in a minor littering case, so Carlisle ordered him to scrape the gum off the bottoms of the court benches with a butter knife while people watched. The “King of Shame” was Texas Judge Ted Poe, who insisted that “people have too good a self-esteem,” so he made them do things such as shovel manure to abase them. What Poe called “Poetic justice” has little to do with actual justice. It is a form of entertainment that sacrifices our most fundamental principles to satisfy our most base impulses. Judges give the public displays of retribution by using citizens as virtual props in their personal theater of the absurd.

In 2003, Texas Judge Buddie Hahn gave an abusive father a choice between spending 30 days in jail or 30 nights sleeping in a doghouse (He chose the doghouse to be able to keep his job). Likewise, in Ohio, municipal Judge Michael Cicconetti sentenced two teens found guilty of breaking into a church on Christmas Eve 2002 to march through town with a donkey and a sign reading, “Sorry for the Jackass Offense.” Cicconetti later ordered a woman to be taken to a remote location to sleep outside for abandoning kittens in parks.

Studies have actually shown limited value in humiliation as a punishment in terms of actual deterrence in crime. Its principle value is found in the political rather than the criminal system. Indeed, Poe used the popularity of his creative punishments to secure a seat in Congress in 2004.

Now, prosecutors and jailers are trying to cut in on the shaming action. In the Bedford case, the punishment was not ordered by a judge but by a prosecutor, Bedford District Attorney Bill Higgins, who promised to seek probation if they demeaned themselves.

“Giving the people what they want” can sometimes get them to forget what they don’t want — like the bread and circuses of Roman emperors. For example, Higgins was dogged by allegations of adultery and having sex in the very courthouse where he paraded Border and her daughter. Though he faced a criminal complaint and admitted to adultery, no one is calling for Higgins to wear a placard as an adulterer. Instead, he is being heralded for parading the two petty thieves.

Likewise, Arizona Sheriff Joe Arpaio has long faced complaints over his heavy-handed tactics against both citizens and illegal immigrants. However, most people know him only as the guy who forced male inmates to wear pink underwear to humiliate them.

Inventing justice

Some judges have faced charges over their meting out personal justice but have received little punishment. Gustavo “Gus” Garza, a justice of the peace in Texas, was given only an admonishment last year when he forced parents to spank their children in front of him in court to avoid heavy fines. In another spanking case, former Alabama judge Herman Thomas actually used shaming punishments as a criminal defense. Thomas was recently acquitted of sodomy and assault after he allegedly took inmates from their cells for spankings and sex in his chambers. Despite testimony alleging spanking and sodomy, Thomas’ lawyer insisted that the judge was merely “mentoring them” and trying to turn them into “productive citizens” in dealing with them in chambers.

All criminal sentences produce shame for most citizens. But there is a difference between shame from a punishment and shame as a punishment. These judges are inventing their own forms of retributive justice like little Caesars toying with citizens. It is a threat to the basic principles of our legal system. It is an abuse of not just the criminal code but of the criminals themselves. It is not just wrong. It is, in a word, shameful.

Court rules against the deputy who stole document from attorney

A few days ago, I posted and commented on a video of a deputy stealing a document from a defense attorney in the middle of a court proceeding in Arizona. (See here). Yesterday it was reported that the deputy has been found guilty of contempt for his actions. Some have criticized the penalty as too lenient, while the County Sheriff (who is referred to in one of the stories as "the most controversial sheriff in the country" who "is routinely accused of abusive practices") openly challenged it and accused the judge of pursuing a political agenda against the County Sheriff's office.

What I find more interesting here is the penalty imposed. The judge sentenced the officer to either apologize to the defendant's attorney at a press conference or report to jail. In addition, the order states that even if the deputy apologizes, if the attorney does not find that the apology "was sufficient," the officer would have to report to jail. For a copy of the decision, go here.

It is very strange that the judge essentially leaves it to the defense attorney to decide if the deputy should serve jail time. Essentially, the judge is telling the attorney that the attorney can decide what the appropriate sentence should be.

The requirement of the apology itself also raises the question of whether it is proper to use "shaming" as a punishment, which has been the subject of some discussion in the past few days.

Here are a few links on the story:

News accounts of the sentencing and the response by the Sheriff: here and here (including a video of the Sheriff accusing the judge of bias against his office).

Commentary on the sentence: here and here (on why the officer should have been charged with a crime for stealing property).

Podcast on the right to court appointed representation in civil cases

As previously reported, California recently enacted a pilot program that will provide lawyers for indigent clients in civil cases. See my posts on October 13 and October 27.

Here is a link to a podcast of a discussion on what some people are referring to now as the "civil Gideon" movement. The name comes from the Supreme Court's 1963 decision Gideon v. Wainwright which guaranteed that criminal defendants unable to afford their own lawyer would have one appointed at the public's expense. Should there be a corollary right in at least certain types of civil cases? Go here to listen to the discussion. Note that the first few seconds of the podcast are the end of a previous segment; keep listening for the beginning of the segment on "civil Gideon".

Thanks to the Media Law Blog for the information.