Ohio adopts new rules for discovery in criminal cases

There is a very important development to report in Ohio. The Ohio Supreme Court has filed with the Ohio General Assembly final amendments to rules of criminal procedure that call for a more open discovery process. The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Go here for more information.

How not to (leave the) practice (of) law

Adding to our ongoing list of posts on "how not to practice law," here is the story of a lawyer who decided to leave the practice of law but forgot to tell her clients.... For this, the South Carolina Supreme Court imposed a definite suspension of no longer than two years and ordered restitution in one of the pending matters. The Court's order is available here.

Thanks to the Legal Profession blog for the information.

Avoiding problems when withdrawing from representation

There are two items of interest in todays' news on terminating the representation of clients:

Here is a link to an article published in the May 2010 edition of the Illinois Bar Journal on ethical issues related to the termination of representation.

Secondly, here is the link to a story of an attorney who decided to leave practice to become a high school teacher. Nothing wrong with that.... Only that she forgot to notify her clients, opposing counsel, or the courts that she had ceased practicing law.

Using false evidence?

Your client's mother says your client was at home asleep at the time of the crime for which the client is on trial. She honestly believes the client was at home. However, your client told you he climbed out the window after his mother checked on him. Your client will not testify at trial. Can you use the mother as an alibi witness?

Here is George Constanza's view on this:

NY Times on Supreme Court's denial of review in death penalty case during which the judge and the prosecutor were dating

Will Texas really execute a defendant when the judge and prosecutor had an undisclosed romantic relationship? Here is a link to an editorial published in the New York Times on the case. For my previous post on this case go here.

Conflict of interest in Toyland

Nintendo Co. has asked an Arkansas federal judge to disqualify a law firm in a patent infringement case because the firm allegedly learned confidential information about Nintendo through a joint defense agreement on another case. Go here for the full story.

Bar Leaders Ask Congress To Boost LSC Funding

The Blog of the Legal Times is reporting that the presidents of 61 state and territorial bar associations and their counterparts at five national bar associations have sent a letter to Congress asking for increased funding for the Legal Services Corp. The bar leaders say more funds are needed to cover a growing gap in aid that has been confirmed by recent studies. For example, according to a 2009 report, LSC programs will not be able to meet the legal needs of about 944,000 poor people seeking assistance in 2009, slightly more people than the programs served in 2008. In one category -- foreclosures -- LSC-funded programs were projected to turn away two for every person served. Programs also would take up fewer than half of the requests for help with employment and family law matters, according to the report. For more on this story go to the Blog of the Legal Times (here).

Domestic abuse and the practice of law

Here are two recent stories involving domestic abuse and the practice of law.

In the first one, an Illinois hearing board recommended a two-year suspension without automatic reinstatement for, among other things, two incidents of domestic violence. In one, the attorney pleaded guilty to domestic battery for hitting his wife and in the other he was arrested for hitting his daughter. The charges in the second case were dismissed because the daughter refused to cooperate with the prosecution. See here. For more on this story go to the Legal Profession Blog.

In the other one, the Nebraska Supreme Court denied the application for admission of a 2008 graduate of the University of Nebraska Law School because of what it called "a pattern of abhorrent behavior towards women." Three women (in nine years) had sought protection orders against the applicant. The Commission found, and the Court agreed that hed did not meet the standards of character required for admission to the bar. The decision is available here. For more on this case go to the Legal Profession Blog.

Top eight reasons to do pro-bono work

Attorney Dawn Levine has published an article in Small Firm Business on why it is a good idea to engage in pro bono work. Go here for the full article. Here are the top eight reasons the title refers to:

"Don't get me wrong, I like to make money as much as the next guy. However, I sometimes work for nothing. . . . I gave some thought to why I do. Here is my top eight list:

1. For every pro bono case you take, that is one attorney joke that is undermined.

2. Pro bono allows me to continue to pay my mortgage and still hold on to my dream of changing the world. While I can't afford to work full time in public service, I can find time for a case here and there.

3. Democracy demands it. If our legal system is not made to work for even the most economically vulnerable, then it ceases to be just.

4. God does not really care if I am "this close" to a billable hours bonus. I don't get a pass just because I am busy.

5. The economy stinks. Unemployment and foreclosures are mushrooming. Creditors are becoming increasingly aggressive. More people than ever with legal needs qualify for pro bono services.

6. The economy stinks, parte dos. Budget cuts have reduced government help to low-income people. Funding for full-time public service attorneys is drying up while donations to nonprofits are going down. Society's safety net for our most vulnerable is fraying.

7. It makes me a better attorney. When I was in law school, we did not discuss what happens in a probate case for a bigamist. I had to figure this out for a pro bono case. Believe it or not, I have since seen it twice more with paying clients.

8. It recharges my batteries. I haven't conducted a scientific study of the subject, but I am convinced that attorneys who participate in pro bono work have greater career satisfaction."

Prosecutor's comments result in reversal of conviction

The Legal Profession Blog is reporting today on a recent case in which the New Jersey Appellate Division has reversed a a conviction because, among other reasons, the prosecutor had improperly vouched for the credibility of a police officer during summation. The case is State v Murphy and it is available here.

In this case, defense counsel attacked the police officer's credibility by arguing that his version of the events was incredible. Defense counsel suggested that noone would have done what the police officer claimed the defendant did (approach two people who were clearly identified as police and drop coccaine right in front of them). In reponse to those comments, the prosecutor stated during his summation that the police officer had no incentive to lie, a statement to which defense counsel promptly objected.

The court held that stating to the jury that the police have no incentive to lie is a statement of the very same character as those the New Jersey Supreme Court has deemed improper.

Pharmaceutical company goes after defeated plaintiff

Back in 2007, 7-year-old Kristen Spears, who suffered from cerebral palsy, was administered a series of therapeutic Botox shots to relax the girl’s clenched limbs. She died. Her mother sued Allergan, the drug's manufacturer arguing that it had concealed information about the dangers of the drug. But a jury in Santa Ana, California, decided last month Allergan wasn’t responsible for the girl’s death in 2007 death. And now Allergan wants to recover $460,000 in legal costs from the mother. Given that the Spears case was the first to come to trial of 15 plaintiff lawsuits accusing Allergan of hiding the dangers of Botox, it is pretty clear the drugmaker is trying to send a message to other plaintiffs to back off.“I’ve been a lawyer for 25 years, and I’ve never seen anything more outrageous than a corporation pursuing this lady for $460,000,” Spears’ attorney, Ray Chester, tells The Orange County Register. “It’s the worst case of corporate bullying I’ve ever seen.”

What is the potential benefit of this conduct, given the negative publicity it has generated already? I wonder if it was suggested by the trial lawyer, in-house counsel or the entity client itself. Go to Pharmalot for more on this story.

Supreme Court denies review in death penalty case during which the judge and the prosecutor were dating

Back in September 2009, 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. The Court then reversed itself and remanded the case for a new sentencing phase - not for a new determination of guilt. See here.

The case was then appealed to the US Supreme Court and today it denied review without comment.

For more on this story go to The Blog of the Legal Times, Simple Justice, Law.com, Ethics Alarms, Grits for Breakfast, the Legal Ethics Forum and CNN.

The overall reaction to the news is negative. Legal Ethics Forum calls it "disappointing news." Simple Justice states: "It's enough to know that the justices of the Supreme Court are romantics at heart, and not even an execution can stand in the way of true love."

Ethics Alarms concludes that "for the public to trust a system that can take away a citizen’s liberty and life, it has to be seen as trustworthy. The Hood case . . . threatens the integrity of the justice system itself."

Comment on prosecutorial misconduct

Long time followers of this blog might remember that last year there were a lot of reports of prosecutorial misconduct. I have not heard many reports this year, but here is a comment (from the website Ethics Alarms) published today about prosecutorial misconduct in general and a case in Virginia in particular.

Stuff you hear in court

"On the Record in Cook County" is a blog that posts comments overheard in the courtrooms in Cook County, Illinois. Here are a few recent entries:

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Judge - It would be helpful if the State would read the law, or the defense for that matter.

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State (during a bench trial, crossing the defendant) - And then you heard someone yell 'police,' right?

Defendant - Do you want an honest answer to that question?

State - Have you not been giving honest answers so far?

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Judge - Why did you plead guilty to a misdemeanor when you knew it would violate your probation?

Defendant - I didn't want to.

Judge - What was the rush? Did you have a lawyer?

Defendant - No.

Judge - Don't say what I think you're going to say. Who did you step up with then?

Defendant - A public defender.

Judge - Yeah, that's what I was afraid you would say.

What not to wear

Can your shirt defeat your right not to incriminate yourself?




Thanks to Jonathan Turley...

Sanctions for failing to tell opposing party that client had died

Two days ago, the Minnesota Supreme Court decided a case similar to Virzi v Grand Trunk, a case assigned for our next class. In the Minnesota case, In re Lyons, the Court imposed an indefinite suspension with no right to apply for reinstatement for at least 12 months because the attorney failed to advise opposing counsel that his client had died prior to reaching a settlement of the client's claim. The case is different than Virzi, however, in that the attorney forgot a basic "rule." When you make a mistake, don't lie about it.

The attorney revealed the client's death to the opposing party after the settlement agreement was signed and executed by the client's wife as personal representative of the estate. Yet, after the bar complaint was filed, the attorney falsely responded about when he learned of the client's death. It also did not help the attorney's case that he had racked up seven prior sanctions since 1994.


Thanks to the Legal Profession blog for the information.

No insurance coverage for misconduct re fees

A recent Illinois Appellate Court decision has held that no coverage was available to an attorney under a lawyer's professional liability policy, for claims against the attorney in either a civil suit or a disciplinary proceeding, based on allegations that the attorney charged a contingent legal fee in excess of that allowed by statute. The case is called Continental Casualty Co. v. Donald T. Bertucci, Ltd., 2010 WL 1033448 (1st Dist. 2010).

What was wrong with the April Fools joke analysis

I have been asked by some of my students to explain why I think the argument advanced by those who attacked the lawyer involved in the April Fools joke discussion was wrong. If you don't know what this is all about go here and here.

I'll try to keep it brief. The argument advanced by the guy in Ethics Alarms was very simple: lying is bad, thus lying is unethical; the April Fools joke was a lie, thus the lawyer acted unethically. It is a categorical argument, based on a value judgment of the conduct involved. What is wrong with the argument is that legal ethics rules are neither categorical nor consequentialist. That is, they are neither based on any pre-determined value judgment of the attorney's conduct nor dependent on a particular consequence or result. They are contextual. They depend on the circumstances. In some cases, lying is okay (as in lying about wanting to rent an apartment to determine if the landlord is discriminating), while in others it is not (as in lying in court).

In addition, when it comes to conduct outside the practice of law (and under Rule 8.4, which was cited in the debate about the joke in question) courts have always limited their evaluation of a lawyer's conduct to the relationship between the actual conduct and the lawyers ability or capacity to practice law. In some cases, a lawyer's pattern of dishonesty can bring into question his or her trustworthiness to the point where it may be relevant for a disciplinary action while in others it may not.

Lawyer Ads

Criminal Justice Blog selects its (least) favorite lawyer ads in a post called "5 Ridiculous Lawyer Ads" (here).

Federal Judge Strikes Down Waiting Period For Sending Out Targeted Mail to Arrestees

In a case that has not received a lot of attention, the U.S. District Court for the Western District of Texas ruled about a week ago that a Texas statute that prohibits lawyers from sending written solicitations to potential clients in criminal or traffic matters within 30 days of their arrest or summons violates the First Amendment. The case is McKinley v. Abbott.

As most readers of this blog probably remember, the US Supreme Court held in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995), that a ban on solicitations through targeted mail to potential personal injury or wrongful death clients within 30 days of their accidents was constitutional. In McKinley, though, the court distinguished Went For It based on the distinction between accident victims and criminal defendants. The court concluded that the challenged Texas statute “neither directly or materially advances a substantial state interest...”

This is not the first time a court reaches this conclusion. The court of appeals for the fourth circuit reached a similar result in Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997).

April fools joke controversy update

Two posts below this one, you will find the first part of this story. If you haven't seen it, scroll down and read that one first then come back here. In any case, as you may recall, the story began with a lawyer/blogger posting a false story on his blog as a joke on April 1st which then fooled a bunch of people including The New York Times. Then a self proclaimed "ethics expert" launched an attack on his website against the lawyer/blogger accusing him of acting unethically. The debate continued for a few days until today when the "expert" finally gives up. To my surprise, and to his credit, he has now publicly admitted that he was wrong. See here and here.

As I said in my earlier post, I enjoyed the joke-story and thought it was a very effective and amusing prank. I did not see anything wrong with it ethically either. I was surprised at the attack by the "Ethics Alarms" website person because it was based on a basic misunderstanding of the content and doctrine of legal ethics - which you would expect someone who sells himself as an "expert" would know. His analysis was simply wrong from the beginning.


UPDATE 4/9/10: Here is another comment on the last post by Ethics Alarms. Simple Justice reponds to Ethics Alarms here.

ABA Conference on Professional Responsibility

The 36th National Conference on Professional Responsibility sponsored by the ABA Center for Professional Responsibility will be held in Seattle on June 2-5, 2010. For more information go here.

Here is a link to the conference schedule which includes sessions on the following topics:

Should Model Rule 1.10 be amended to remove imputation within a law firm in the context of concurrent representation?

Should Model Rule 5.6(a) be repealed, thereby permitting lawyers to participate in agreements restricting the right of a lawyer to practice?

Should Model Rule 5.4 be amended to permit lawyers to practice in law firm entities that have non-lawyer investors or owners?

Prosecutors and Their Disclosure Duties: A Regulatory Conundrum

The Year in Review in Conflicts

SEC Prosecutions of Lawyers: Trends and Implications

Trial Lawyers in Trouble

Social Websites and Legal Ethics

Preparing Lawyers (Effectively) to Prepare Witnesses (Ethically)

The Year in Review in Confidentiality and Attorney-Client Privilege

The Suicide Crisis

The Ethics of Investigations

Professionalism Revisited: Lessons From Social Science and Health Professions

Cross Border Practice at the Crossroads: Multijurisdictional Practice Revisited

"April Fool's" Joke or Ethical Misconduct?

This is the (long) story of how an "April Fool's" joke has turned into a debate about professional ethics. I will provide you with the links to the original story - which you should read to get the real feel of it - but to save you some time I will summarize it.

It all started early in the morning on April 1st when Eric Turkewitz, a very well known law blogger from New York, announced on his blog that he was shutting down his blog because he had been selected by the Obama administration to create and run a new White House Law Blog. His post was very convincing and included a photo of him meeting President Obama. I read his blog daily and saw the post early that morning. I totally bought it and felt instantly jealous! That original post is available here (although it may be updated now with the revelation that it was all a prank).

But that wasn't all. Two other popular bloggers were in on the joke and, right on cue, they soon posted their opinions on the "news." Simple Justice chimed in here. To add credibility to the "story," SJ added some concerns from the office of the President's press secretary. Meanwhile, the Volokh Conspiracy, another very popular blog, published very credible criticism (here). In response to these (fake) critiques, Turkewitz replied here.

The overall effect of the stories was a thing of beauty. It sounded totally credible and reached a lot of people out there.

Needless to say, it was all a joke; a made up story to see how many people would be fooled. And a lot of people were - including me.

Now, here is the thing: one of those fooled by the story was someone in the New York Times, who ran the story without checking its veracity first. Not only were they fooled, they were fools. (The Wall Street Journal, in contrast, did their job, contacted Turkewitz and were told the truth.) Eventually, Turkewitz revealed his joke (here). I was amused. The NYT, on the other hand, was not amused and cried foul.

And then the blog "Ethics Alarms" wrote: "Once again, Ethics Alarms will declare that it is irresponsible for anyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun”…yes, even on April 1. . . . No doubt about it, the Times was fooled, and should have checked the story. Then again, lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct."

Turkewitz and Simple Justice have responded (here and here). In his reply, Turkewitz asks "Who the heck is this blogger and why is he such a killjoy? And more importantly, does his argument have even a grain of merit?" and then proceeds to make an argument against Ethics Alarms' position analogizing the humor in the April Fools' joke to the use of humor in lawyer advertising. Simple Justice's reply takes a different perspective on the issue but reaches the same conclusion: that Ethics Alarms "is dead wrong" and that its "knee-jerk punditry. . .completely misapprehends the nature of the a lawyer's ethical duty."

In conclusion, Simple Justice argues that Rule 8.4 does not turn lawyers into truthy automatons: "We're still human. We are not, by dint of Rule 8.4, forbidden from telling our spouse that those pants don't make her butt look fat. And we can have some fun by playing April Fools jokes without risking disbarment. . . . We maintain the right to express ourselves, to use the rhetorical mechanisms available to the rest of society, to have opinions and to be silly and frivolous, as in having some fun. We retain the right to be human, even though we're lawyers."

UPDATE 4/6/10: Ethics Alarms replies to Turkewitz and Simple Justice (here). Make sure you read the comments (and may want to continue to check them in the near future for more.)

UPDATE 4/6/10 11pm: The blog "Defending People" replies to Ethics Alarms here.

So let's just ask the question: do you think it is professional misconduct for a lawyer to post a made up story on a blog as a joke, particularly when the New York Times runs it without checking its veracity first and is later publicly embarrased when the story turns out to be a prank?

DC opinion: sponsoring immigrant during representation is a conflict of interest

The District of Columbia Bar Legal Ethics Committee has issued an important opinion (available here) on the practice by immigration attorneys of executing affidavits of support for their clients. It concludes that lawyers representing immigrants cannot execute an Affidavit of Support (U.S. Citizenship and Immigration Services Form I-864) on the immigrant’s behalf as a joint–sponsor while continuing to represent the immigrant in the matter because doing so constitutes a conflict of interest.

The opinion states that "[t]ypically, a person who signs an Affidavit of Support agrees to support the immigrant at an annual income that is not less than 125% of the federal poverty level so that the immigrant will not become a public charge. The ensuing contractual obligations continue for years after the immigrant is admitted on the basis of the Affidavit of Support. The Affidavit of Support is a guarantee of financial assistance to a client. Such guarantees are generally prohibited by Rule 1.8(d). Because the obligations continue long after the completion of the immigration proceeding, the undertaking does not fit within the narrow safe harbor of Rule 1.8(d)(2), which allows, but does not require, financial support strictly necessary to sustain the client during a proceeding. An Affidavit of Support undertaking by a lawyer to a client is also fraught with peril under Rule 1.7(b)(4) (conflicts of interest). Thus, a lawyer who wishes to serve as a joint sponsor for an immigration client by executing an Affidavit of Support on the immigrant’s behalf must withdraw from the representation of that client before doing so."


Thanks to Mike Frisch of the Legal Profession blog for the information and link.

Supreme Court rules that bad advice re risk of deportation in criminal case resulted in ineffective assistance of counsel

Two days ago, the Supreme Court announced its decision in Padilla v. Kentucky (available here) ruling that failure to provide accurate advice as to the risk of deportation while advising a defendant to plead guilty to a crime constituted ineffective assistance of counsel and, thus, a violation of the defendant's Constitutional rights.

The case involved a legal permanent resident from Honduras who pleaded guilty to drug distribution charges after his lawyer advised him not to worry about deportation because he had lived in the U.S. for 40 years. When he found out that the erroneous advise exposed him to near-certain deportation he claimed ineffective assistance of counsel.

The ruling obviously suggests that lawyers have a duty to alert clients about all possible consequences that flow from pleading guilty. Justice John Paul Stevens wrote for the 7-2 majority in which he states that the weight of prevailing professional norms supports a finding that lawyers must give accurate advice about deportation consequences of criminal proceedings as part of the Sixth Amendment right to counsel.

For an interesting take on the case go to Simple Justice, which criticizes the decision for imposing a new burden on criminal defense attorneys: "There was never any question that immigrants should be advised that a plea of guilty to an "aggravated felony" had immigration consequences. The question was who was responsible for doing so. . . . .What's unclear, however, is how the court could impose a burden on defense counsel to predict the future, and in a different legal specialty no less." Make sure you read the exchange in the "comments" section too.

For more on this story go to the The National Law Journal, The Blog of the Legal Times, Defending People, Law.com (here and here), the Legal Ethics Forum, and Koehler Law (which cites other blogs that I have not seen yet too: Mark Bennett, Gideon, Scott Greenfield, Jeff Gamso and Palm Beach Criminal Blog, (with a little primer on the basic issues criminal defense lawyers should look for).

Disciplinary costs are not dischargeable in bankruptcy

The Ninth Circuit has joined other federal courts holding that disciplinary costs imposed on attorneys by the California State Bar are intended as penalties and therefore are not dischargeable in bankruptcy. The case is called State Bar of California v. Findley (In re Findley), 593 F.3d 1048 (9th Cir. 2010). Go here for more on the story.

Using a company computer to send personal e-mail to a lawyer does not affect attorney/client privilege

The New Jersey Supreme Court has decided, in Stengart v. Loving Care Agency, Inc. (available here), that an employee "could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them." For this reason, the employer's counsel violated Rule 4.4(b) by reading the e-mails and failing to promptly notify the employee. The case was remanded to decide whether disqualification, screening, or imposition of other some other remedy should be imposed for the ethical violation.


Thanks to the Legal Profession blog for the information.

How not to practice law: pay your bar dues with a check from your client's account

I continue to be amazed by the items that make it to my ongoing "how not to practice law" posts. Here is the latest. Let's assume you have to pay your bar dues. Simple, right? Write check, sign check, mail check. Done. Unless you are dumb enough to do it using your client's money and let the bar know it in the process!

The Legal Profession blog is reporting today that 12 attorneys in Pennsylvania are under investigation because they paid their annual fees with checks drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel. In a footnote, the report calls the move the ethical equivalent of wearing a big "Please kick me" sign.

UPDATE 7/31/11:  Here is a report on another lawyer who paid his bar dues with money from a client's trust account...

Thanks to Legal Profession for the information.

Alternatives to the adversary system?

Here is the link to an interesting comment suggesting the need to change our approach to discovery disputes.

The problem? Here is how the author describes it: "Lawyers continue to become enmeshed in lengthy, adversarial discovery actions, believing them to be advocacy for their clients -- a path that increasingly leads to standoffs that must be resolved by the court. As a result, plaintiffs frequently prevail in their efforts to portray recalcitrant defendants as guilty parties who attempt to hide misdeeds by refusing to provide relevant information, when in fact much of that information is innocuous and ultimately will be discovered. Unfortunately, this "trial by discovery" has been honed as a tactic to divert attention from the merits of a case and onto presumed discovery failings, and -- in extreme cases -- as leverage for settlements."

The solution? Rethinking traditional discovery strategies to something along the lines of the "Sedona Conference Cooperation Proclamation" which holds that "cooperation in discovery is consistent with zealous advocacy" and which calls for cooperative, collaborative, transparent discovery and a refocusing of litigation toward the substantive resolution of the dispute."

For more information on the Sedona Conference and links to its documents, go here.

Speaking of frivolous litigation, how about frivolous legislation?

Prof. Jonathan Turley is reporting today (here) that the governor of Utah has signed legislation authorizing the state to exercise eminent domain over federal lands. Clearly a state has no authority to do this but it has not stopped the state from setting aside $3 million dollars to litigate to defend it. This clearly would be frivolous litigation. For the full story, click here.

"Virtual office" not good enough in New Jersey

Law.com is reporting today that two court regulatory committees in New Jersey have concluded that "virtual offices" do not satisfy New Jersey's bona fide office rule. This could affect large numbers of New Jersey practitioners, who work from their homes but need someone to take their calls and a conference room to meet clients. The committees concluded that virtual offices violate Rule 1:21-1(a). The Committee's opinion is available here. To read the full story, go here.

How not to practice law: get clients to give you title of their house so they avoid foreclosure, then get them evicted

The Legal Profession blog is reporting today (here) that the New York Appellate Division for the Second Judicial Department suspended an an attorney for four years for having his clients convey title to their home to him in order to avoid foreclosure and later evicting the clients while continuing to represent them in a family court matter. (Go here for the order).

Lawyering and expert witnesses in the tobacco litigation

Here is a link to a very interesting article in The Nation magazine about the use of experts in the "big tobacco litigation" cases.

On health care and frivolous litigation part 2

Following up on my comment below on whether the attacks on the constitutionality of the health care law are frivolous, here is a podcast of "The Breakdown" with Christopher Hayes in which he invites Columbia law professor Gillian Metzger to examine the validity of the constitutional attacks on the health care law. Also, here is a link to a debate on the subject published in the New York Times and to an article on in The Nation.

On health care and frivolous litigation

I am not a Constitutional law expert so I asked some of my colleagues about the lawsuits filed by several Attorneys General challenging the constitutionality of the health care bill. They all said without hesitation that the lawsuits are "a waste of time," "just for show" or "ridiculous." If this is the case, I wonder if any court will declare them to be frivolous and whether they will consider imposing sanctions. This could get interesting... Stay tuned.

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

DC's IOLTA program will be mandatory

The IOLTA program in the District of Columbia used to allow attorney's to "opt out" from participating. This will no longer be allowed. Go here for the story in the Blog of the Legal Times and here for the story in the Legal Profession Blog. I wonder if the move will generate yet another challenge by the Washington Legal Foundation...

On inadequate representation of indigent clients

I recently wrote about a class action New York seeking to force the state to fulfill its obligation to provide competent legal representation to indigent defendants in criminal cases (here). (And now there is news of a similar case in Michigan).

Here are the first few paragraphs from an article in the National Law Journal.com on this issue:

"Last week, New York's highest court heard arguments in a class action challenging the legal representation of indigent defendants. The Michigan Supreme Court will consider a similar case in April. Both suits are part of a larger litigation strategy to force negligent states to live up to their constitutional obligations. In some places, the poor receive the facade of representation from overloaded, undercompensated defense attorneys.

At the same time, the Justice Department has launched an initiative to improve the representation of indigent defendants, led by Harvard law professor Laurence Tribe. The program could draw attention to those jurisdictions that skimp on their legal duty to provide competent counsel for indigent defendants.

The problem of inadequate representation is very real and must be remedied, but the difficult question is the appropriate role of the federal government. Although tempting, Congress should not throw more money at the states; instead, it needs to get out of this business altogether."

To keep reading this story go here.

I agree that states owe indigent defendants competent legal representations. The system is broken and something needs to be done. I am not sure what it is but something needs to be done.

Suspension for poor supervision and employee's mishandling of client's funds

In class we emphasize how important it is to handle client's funds properly. As everybody knows, mishandling clients' money is one of the most, if not the most, common grounds for disbarment. That part is easy to remember. Here is a story that reminds us of another aspect of this important duty. The lawyer can be disciplined (and liable) for an employee's conduct too. The ABA Journal.com is reporting today that a New Hampshire attorney has had his license suspended for six months because his paralegal allegedly embezzled $80,000 from clients. Go here for the story.

The Nation on torture, lawyers and professional responsibility

Twice in the last couple of weeks the main editorial in The Nation magazine has been about issues related to professional responsibility.

The March 1 issue's editorial laments the failure of the Justice Department's Office of Professional Responsibility to recommend discipline for Jay Bybee and John Yoo, the principal authors of the initial "torture memo," concluding that "the report has been watered down to find only the exercise of "poor judgment" and does not recommend referral for discipline. Torture has been called many things before--chief among them a "crime against humanity"--but "poor judgment"? I bet they will also find that "mistakes were made." " The full editorial is available here.

The March 29 issue's editorial is a comment on Liz Cheney's attack on the values of the lawyers for Gantánamo detainees. It argues that the Dept of Justice should have celebrated the lawyers, "explaining (since it apparently needs repeating) that the American adversarial system depends on just such courageous conduct from lawyers willing to defend the least popular among us." And it calls Cheney's attack "scurrilous" and "so baseless [it] can be understood only as partisan demagoguery, designed to take the focus off the real culprits . . . who authorized [torture]." This full editorial is available here.

Supreme Court to review case on possible liability for failure to train prosecutors to perform their duties

The Blog of the Legal Times is reporting today that the US Supreme Court has agreed to review Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit affirmed a $14 million award for the wrongful conviction and death sentence of the defendant in a murder case.

The basis of the claim was that the defendant district attorney's office failed to train its lawyers on their legal and ethical duty to disclose exculpatory evidence, which resulted in the wrongful conviction of the then-defendant-now plaintiff. The opinion of the Court of Appeals is available here.

The BLT story states that current District Attorney Leon Cannizaro Jr. appealed the ruling to the Supreme Court, "asserting that upholding the 5th Circuit's decision "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct."" This is a strange argument since - according to the story - the claim is not based on vicarious liability. Someone here doesn't understand the concept of vicarious liability.

That misunderstanding aside, the case will be interesting to follow as it may have important implications for the concept of prosecutorial immunity and the extent of the possible civil liability in tort and ethical responsibility of the DA's office and its prosecutors. The case will be argued in the fall.

The case also has another interesting connection to issues of professional responsibility: the original case against the defendant was the underlying case in In Re Riehlmann (La 2005) often discussed in connection with the duty to disclose attorney misconduct under Rule 8.3. This was the case in which a former prosecutor, upon learning he was dying of cancer, finally decided to unburden himself and confess to a friend (Riehlmann) that he (the prosecutor) had intentionally withheld exculpatory evidence in a case that resulted in the imposition of the death penalty. That case was the case against Thompson, the then defendant-now plaintiff who eventually got the $14 million for the wrongful conviction.

So, let's recap. In 1985, a prosecutor withholds exculpatory evidence intentionally in a case against a man named Thompson, who is then convicted and sentenced to death. In 1994, the prosecutor confesses what he did to his friend Riehlmann (also a former prosecutor). Riehlmann does nothing about this for 5 years. After the exculpatory evidence is discovered in 1999, Riehlmann reveals what the former DA had told him. (Years later, Riehlmann is disciplined for his own misconduct in failing to disclose the prosecutor's misconduct). Eventually, after spending almost 20 years in death row for a crime he did not commit, Thompson's conviction is vacated, he is re-tried and found not guilty. Thompson then sued for damages arguing a violation of this rights under 42 USC Sec 1983 and was awarded $14 million. The Court of Appeals affirmed and now the Supreme Court will review the case in the fall.

Stay tuned...

UPDATE 3/26: Here is the story in Law.com

How not to practice law: let the client dictate (bad) strategy

A few minutes ago, I posted a new addition to our list of examples of how NOT to practice law. Here is yet another one: allow a rich client with a lot of disposable income to dictate a litigation strategy designed to harass the opponent with excessive and improper discovery requests. In a recent case, reported in the Legal Profession blog (here), this (and other instances of miscounduct) cost the attorney a suspension and restitution of fees.

As is often the case in these "how not to practice law" cases, the underlying principle is a basic one. It is the lawyer's responsibility to tell the client when the client's goals are improper. Along these lines, in this case the hearing committee concluded that "[t]he respondent should have done far more than he did to restrain the client's overzealous pursuit of discovery with realistic, focused, and independent professional advice. Instead, the respondent voiced only limited objections and then continued to pursue the client's hopelessly excessive and improper discovery requests. Given the misguided strategy, the high fees generated little or no value for the client. While much of the respondent's work in this misdirected pursuit was competent, the cases went nowhere and the work was ultimately wasted. The gravamen of the misconduct here is that the respondent placed his interest in retaining a profitable client ahead of his professional duties as a member of the bar to effectively counsel clients and provide diligent, competent representation. As a result, the client's cases never advanced beyond discovery disputes despite the passage of years and the payment of high fees."

Bankruptcy Lawyers Troubled by Recent High Court Ruling

As I reported a few days ago, the Supreme Court upheld the application to attorneys of a federal law that bars "debt relief agencies" from advising clients to incur more debt for filing for bankruptcy. See here.

Here is an article on Law.com on how bankruptcy lawyers seem to be reacting to the decision.

How not to practice law: ask client to pay fees with sex

Here is the most recent addition to our running list of examples of how NOT to practice law. This is one we have seen before and it should be pretty obvious... but it continues to happen. Some people are just that dumb. Here is the thing, as stated in the story on Law.com, "Ethics rules allow lawyers to take payment in different forms from their clients -- cash, check, credit card. A naked back rub is not one of the options." Go here for the full story.

The story involves an attorney who at one point in the past was suspended for 15 months for making unwanted sexual advances toward clients and is now under investigation for allegedly having offered to waive a client's fees in exchange for a nude massage.

Go here for all the stories on how not to practice law.

Illinois Supreme Court interprets application of 'no contact' rule in criminal cases

The Supreme Court of Illinois published an interesting opinion today interpreting the reach of Rule 4.2 of the Illinois Rules of Professional Conduct, also known as the “no contact” rule, which bars a lawyer from directly contacting a party the lawyer knows to be represented by another lawyer in that matter to discuss the subject of the representation. The case is People v Santiago and it is available here.

In this case, a juvenile court appointed an attorney to represent one Evelyn Santiago in a child protection case seeking to declare Santiago’s two children wards of the court because she was suspected of child abuse. While that case was pending and based on the same facts that gave rise to the child protection case, Santiago was arrested for child endangerment. Then, in relation to that case, a State’s Attorneys questioned Santiago without contacting her appointed attorney in the child protection case. During this interview, Santiago made incriminating statements.

Santiago then argued in the criminal case that the State had violated Rule 4.2 and requested the exclusion of the statements made to the State’s Attorney outside the presence of the lawyer.

The trial court held that the State’s Attorney violated Rule 4.2, and suppressed defendant’s statements and the appellate court reversed the trial court.

The Supreme Court found that, even though Rule 4.2 applies to prosecutors in criminal cases prior to the filing of formal charges, it did not apply in this particular case. (It is interesting to note that for this reason the Court did not have a chance to decide the question of whether the suppression of a defendant’s statement would be a proper remedy to the violation of the rule in a criminal case.)

The State argued that Rule 4.2 did not apply because the lawyer was not representing the defendant in “the matter” related to the prosecutor’s interview. The defendant argued that there was such an integral relationship between the criminal and child protection cases that, pursuant to Rule 4.2, the State should have contacted the defendant’s attorney in the child protection case.

The Court sided with the State in its interpreation of the application of the Rule and concluded that, since the attorney had not been appointed to represent the defendant in the criminal matter, the defendant was, in fact, not represented in the criminal matter. Thus, the prosecutor did not violate Rule 4.2.

Thus, the Court interpreted the rule to say that a lawyer can contact a party directly to talk about a particular case even if the attorney knows the party has a lawyer, as long as that lawyer is not representing the party in that one particular case even if the the two cases are related matters. The Court explicitly states that “had the drafters of Rule 4.2 intended the parameters of the rule to be defined from a fact perspective rather than a case perspective, the drafters would have included language to that effect” and concludes that it the drafters had intended a different interpretation they would have used the words “same or a substantially related matter” in the rule.

In the end, as the Court puts it, “the fact that [the] attorney [in the child protection case] did not represent defendant in the criminal case at the time prosecutors questioned her is fatal to defendant’s claim that Rule 4.2 was violated in this case.”

NY case challenges adequacy of public defender system

Because an estimated 80 percent of felony defendants in large states are too poor to hire their own lawyers, a class-action suit to be argued next week in New York’s highest court has become a test of a national strategy by civil liberties groups to challenge what they say are failed public defender programs in many states. The lawsuit reportedly argues that the public defeder system is "dysfunctional, underfinanced and “in crisis,” with often poorly trained and poorly supervised lawyers handling huge caseloads" and says that "indigent clients have been failed by their appointed lawyers all around the state." Go here for the full story in the New York Times and here for a short version from the Wall Street Journal law blog.

Detainees' lawyers reply to Liz Cheney's attacks

Two former Guantánamo detainee lawyers have published an article commenting on Liz Cheney's campaign against the Dept of Justice for employing other former detainee lawyers. The article is available here. In the article, the authors state, in part:

"Cheney . . . should know better. She is a law school graduate and former practicing attorney. Her video contradicts more than 200 years of legal tradition, whereby American attorneys have served as counsel for unpopular clients, often without fee, in order to ensure that our country remains a place where there is "justice for all" — even those deemed our enemies. . . . .

. . . She asks: "Whose values do they share?"

It is hard to imagine a more reckless charge. Well, on second thought, we can think of one. Her video is reminiscent of similar tactics used during one of the darker episodes in American history, when Sen. Joseph McCarthy charged that those who insisted on due process for anyone he accused must be a Communist sympathizer or a closet enemy of the U.S. . . . .We believe history will judge Cheney's behavior as the equivalent of McCarthy's.

Our constitutional system of government requires that we afford due process to defendants even in times of genuine threat to our nation and attacks on our people. The courts depend on the willingness of lawyers to represent those accused of crimes, although their clients may be feared or hated. . . .

The lawyers at the Department of Justice who appeared on behalf of Guantanamo prisoners deserve our admiration and respect, as our country tries to resolve the difficult issues of how we will dispense justice to those considered to be our enemies. They certainly do not deserve to be called "al-Qaida lawyers," be labeled disloyal and unpatriotic or be disqualified from government service."

And to that, I say, "well said!" For my previous posts on this subject go (in order) here, here, here, here, here and here.

Illinois Supreme Court announces list of disciplined attorneys; here's what they did to deserve it

The Illinois Supreme Court has announced the most recent list of disciplined lawyers in the state. Seven were disbarred, nine were suspended, one was reprimanded and three were censured. For the full list of names and the location of their practice go here.

Here is a quick list of the types of conduct that resulted in the different sanctions:

Lawyers were disbarred for the following:

-criminal conviction for bringing contraband into a penal institution, possessing a controlled substance with intent to deliver, and possessing cannabis with intent to deliver.

-reciprocal discipline after disbarment in California for repeatedly filing frivolous lawsuits, pleadings and appeals.

-misappropriation of client funds, failing to diligently represent a client, making false statements to clients, and misrepresentations to the ARDC.

-reciprocal discipline after disbarment in Michigan for settling a personal injury matter without his client’s knowledge or consent.

-converting all of a client's trust assets, $30,656.73, for lawyer's own purposes.

-reciprocal discipline after disbarment in Michigan for neglecting a client’s immigration case, refusing to refund unearned fees, and failing to be candid with the disciplinary authority.

-lawyer entered a guilty plea to a charge of willfully assisting a client in filing a fraudulent United States income tax return that understated the client’s income by $478,098.

The lawyers who were suspended engaged in the following misconduct:

-neglecting a client’s immigration case, making misrepresentations to the client about the status of the matter and failing to appear and participate in the disciplinary proceedings.

-failing to communicate with two clients about their breach of contract claims and failing to cooperate with, or participate in, the disciplinary investigation.

-neglecting two different client matters, misrepresenting the status of one of those matters to his client, failing to carry out his duties in two cases where he had been appointed to serve as a guardian ad litem, and failing to cooperate with the ARDC.

-driving under the influence of alcohol (two convictions) (two different lawyers, same facts)

-convicted in state court on five misdemeanor counts of theft of client retainer monies.

-reciprocal discipline after suspension in Tennessee for conviction in federal court to conspiracy to defraud mortgage loan companies and financial institutions

-engaging in conduct involving battery when he made unsolicited and improper sexual advances toward both a female client and the wife of a second client; also breaching a fiduciary duty to both women clients and to a third client to whom he also made an unsolicited sexual advance over the telephone.

-mishandling settlement funds during a dispute with his former law firm partners over money that was due to each partner after the firm’s dissolution.

The lawyers that were censured engaged in the following misconduct:

-failing to promptly refund the unearned portion of fee advances he had received from several clients who had discharged him.

-preparing a will on behalf of a client giving himself and his wife a substantial gift.

-neglecting discovery obligations in a client’s dissolution of marriage proceeding, resulting in the imposition of monetary sanctions against the client, and he failing to inform the client of the entry of the sanctions.

The lawyer who was reprimanded had been informally admonished in Idaho for engaging in the unauthorized practice of law while she was a legal intern employed at a public defender’s office. At the time of the misconduct, she had not yet taken the Idaho bar examination. The Illinois Supreme Court imposed reciprocal discipline and reprimanded her.

New York Advertising Rules Held Unconstitutional

Breaking news from New York: the Second Circuit has announced it is upholding a lower court's ruling that New York’s lawyer advertising rules are unconstitutional (with two exceptions — fictitious law firms and the thirty day moratorium on lawyers contacting accident victims). Interestingly, I have argued before that the rule on the moratorium should have been declared unconstitutional. The opinion is available here.

For comments on the decision you can go to The Legal Ethics Forum, The NY Personal Injury Blog, and Public Citizen's Consumer Law and Policy Blog.

UPDATE (3/13) : here is the story in Law.com

UPDATE (3/14): here is a comment in Simple Justice

Supreme Court upholds law related to attorney speech

Last week, the Supreme Court upheld the application to attorneys of a federal law that bars "debt relief agencies" from advising clients to incur more debt for filing for bankruptcy. The case (Milavetz, Gallop & Milavetz v. United States) involves a law firm from Minnesota which argued that lawyers should not be covered by the law. The opinion is available here.

Here is a link to a short comment on the case: Thoughts on the Supreme Court's Bankruptcy Decision, Attorney Advice, and the Law of Lawyering (Legal Ethics Forum). This comment also has links to more comments (here, here, here, and here).

Missing deadline results in malpractice verdict

The Legal Profession Blog is reporting today on an interesting case that illustrates a problem that has bothered me for a long time.

The story starts with a high school teacher sitting in her living room when a small plane hit the roof of the second story of her home. She suffered no direct physical injury but went into a state of shock, which led to health problems. She retained an attorney to file suit against the pilot. The attorney missed the one-year statute of limitations despite reminders and also failed to comply with discovery obligations and court orders. The suit was dismissed. The teacher then sued her attorney for malpractice. A jury returned a verdict in her favor of over $5 million. The lawyer appealed. The Kentucky Court of Appeals affirmed the jury verdict of malpractice and punitive damages against the attorney but vacated some aspects of the damage award. In particular, the teacher's "case-within-a-case" proving negligence on the part of the pilot could not sustain a claim for punitive damages because of Kentucky's "impact" rule. The decision is available here.


I am very sympathetic to the plaintiff and I literally yell at my students that losing a case for a client by missing the statute of limitations deadline is one of the worst things they can do, but I have to say the court's conclusion here is not very convincing.

The court essentially contradicts itself. While saying that, to satisfy cause in fact, the plaintiff has to show that she "would have prevailed in the underlying case," it finds that the plaintiff meets the burden by showing that she "had a viable claim" and that she "lost the opportunity to maintain" it.

I am sorry but you can't have it both ways. If the law is that you have to show you would have WON the case, you don't meet that burden by showing that you "lost the chance to try to win it."

It is clear that the lawyer was negligent, but all that shows is that the plaintiff can show breach of duty. The court essentially found the evidence of breach so compelling that it felt it also showed causation. That, simply, makes no sense.

I have always thought that the standard should be that the plaintiff show he or she lost the chance to win (and that the injury should be an amount equivalent to the value of that lost chance), but, as far as I know, that is not the law in any state.

Are secret settlements unethical?

It is not uncommon for defendants to offer more money to settle a case if the plaintiff and the attorney for the plaintiff agree to keep the terms of the settlement confidential. Are these agreements unethical?

The American Association for Justice will explore this question in a "teleseminar" on March 16. For more information go here.

Unethical conduct by Toyota in litigation?

Here is a short video (after a commercial) from CNN on an important aspect of the Toyota affair. It discusses the possibility that Toyota failed to disclose important and relevant documents in product liability cases.

New York Times publishes debate about the Guantánamo detainees lawyers at the Dept of Justice

The New York Times has published a lively and very instructive debate on the issues raised by the attacks on the Government for having hired former Guantánamo detainees lawyers for the Dept of Justice. The debate includes short Op-ed pieces by the very prominent authors: Alan M. Dershowitz (Harvard Law School), Stephen Gillers (N.Y.U. School of Law), Benjamin Wittes(Brookings Institution), Andrew C. McCarthy (legal affairs editor at National Review), Matthew Waxman (Columbia Law School), Kenneth Anderson law professor, American University. All the pieces can be found here.

You should read all of them, but in my humble opinion, the more interesting pieces are those by Waxman (on the side that criticizes the attacks on the government and the lawyers) and the one by Wittes (which defends that attacks).

Waxman states, in part, something I agree with - as I tried to, not so eloquently, suggest in my original post a few days ago: " If our counter-terrorism detention and prosecution policy is going to succeed in the long-term, it will be in part because of advocacy for the rights of terrorism suspects and adherence to constitutional and international legal standards, not despite it. For example, to promote cooperation from our international allies and partners — law enforcement, detention policy and other forms of cooperation — the legal processes involved must be viewed as legitimate. Zealous legal representation is critical to that legitimacy. Portraying legal advocacy for detainees as contrary to national security interests is short-sighted and a one-dimensional perspective of a complex set of issues, viewing law as a constraint on American power rather than often a source of it." Read his comment here.

McCarthy replies by stating, in part: "Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans. Unlike criminals, war prisoners aren’t entitled to lawyers. This is a ludicrous concept, so the profession has to engage in serial deceptions to sell it. Most prominent among these is the assertion that every one, no matter how unpopular, is entitled to counsel. Nonsense." Read his comment here.

Meet a Guantánamo detainee lawyer

Here is an interview from a few years ago of an American lawyer who volunteered to represent Guantánamo detainees before the Supreme Court. I don't know if he is one of the lawyers in the middle of the Liz Cheney/"Al Quaeda 7" controversy, but I think the interview is relevant to the discussion. He makes a very eloquent argument for why lawyers who defend unpopular clients do it and, I think, for why we should be praising their work. The interview is only about 6 minutes long.

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The debate about Liz Cheney's attacks on DoJ lawyers continues

Over at the Legal Ethics Forum, Prof Andrew Perlman (Suffolk Univ Law School) has posted a short, but very good comment on the issue (available here), in which he argues a similar position to the one I tried to argue in my original post on this whole affair. His argument is as follows: "We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values. Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law. Lawyers who endorse those values should be praised, not criticized. In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. Liz Cheney, therefore, is right about one thing: the work of the "al-Qaeda 7" lawyers does reflect their value judgments. By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced. And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals."

Meanwhile, more and more articles, posts and op-ed pieces are getting published on this same issue. Here is a list of some of the ones I have seen today. Because there are so many coming out every day, rather than posting anew every time I come accross a new article I will just add it to this list, so keep checking this post if you want the latest....

New York Times story

Op-ed from former Attorney General Michael Mukasey

Op-ed piece by Marc Thiessen (supporting Liz Cheney)

Reply to Thiessen's article by Prof. David Luban

Article in the Wall Stree Journal Law Blog


Thanks to John Steele for some of these links.

In Search of Volunteer Lawyers for Death Row Inmates

In Search of Volunteer Lawyers for Death Row Inmates... Go here for the full story.

More on the controversy over Dept of Justice hiring former detainee lawyers

Here is a segment from last Friday's TV show Countdown with more details on the controversy and the reaction to the video:

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

Here is a segment from today's show in which Ken Starr discusses the letter I mentioned in the previous post:

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

More debate as to the attacks on the Dept of Justice lawyers

A group of well-known conservative lawyers have signed on to a letter chiding Liz Cheney as well. The letter states, in part:

"The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications. . . . . To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit. Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. "

The full letter is available here.

Meanwhile, the Blog of the Legal Times is reporting today that "[p]rominent former Department of Justice officials are joining the growing criticism against efforts to question the ethics and loyalty of current DOJ attorneys who, in private practice, had advocated for Guantanamo Bay detainees." Go here for the full story.

For more on this story (and other interesting links) to the Wall Street Journal law blog (March 5 and March 8 story, Politico, and another story in the Wall Street Journal law blog.

The New York Times also published an Op-ed piece (here) that begins thus: "In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within."

When you check out these stories don't forget to look at the comments readers have posted about them.

Support legal aid in Illinois

From the Illinois State Bar Association blog:

"Gov. Quinn will announce his budget plan for fiscal year 2011 on Wednesday, March 10. For the first time in state history, the governor’s office has launched a website to gather public comment on what to include in the budget. This is a chance to let the Gov. know the importance of civil legal aid in our communities. The Governor’s office is tracking the issues so your voice will be heard. The Illinois Equal Justice Foundation’s appropriation for civil legal aid was cut 50% this year – from $3.5 million to $1.75 million. Eight long-standing grantees were cut, no new programs were funded and the awarded grants were reduced 20%-79% compared to 2009. This means 37,000 fewer people will have their civil legal needs met at a time when legal aid is needed most. Click here to post your comment to the Governor’s budget website."

Controversy over Dept of Justice hiring former detainee lawyers

By now I am sure you have heard the controversy and debate generated by a video that criticizes the Obama administration for hiring lawyers for the Department of Justice who had represented Guantanamo detainees in the past. The video, released by a group called Keep America Safe (whose board members include Elizabeth Cheney), questions the lawyers’ loyalty to the United States, calling the Department of Justice "Department of Jihad" and asking “Whose values do they share?"

In a way, we should not be surprised by this kind of attack since the previous administration spent a lot of efforts critizing, attacking and trying to control or punish attorneys who worked to help Guantanamo detainees. A lot of attention was given back then to comments challenging the “loyalty” of attorneys who volunteered for such work. There is a lot of literature out there you can find to get more information about that, including a short article by Jesselyn Radack called “A Blacklist’s Real Face” published in The National Law Journal on February 19, 2007 in which the author describes her own experience of retaliation after she exposed unethical conduct by lawyers in the DoJ for which she was branded a traitor and supporter of terrorism. Sounds familiar?

Now, Liz Chaney and her friends are back at it again calling the lawyers who formerly represented detainees “The Al Qaeda Seven.”

The attack on the administration and on the lawyers themselves is obviously hypocritical (the Bush administration also hired lawyers who had represented detainees) but, more importantly, it is based on just plain ignorance of what it means to be a lawyer and to believe in and defend the rule of law and the Constitution. I am happy to see that it has been strongly denounced by so many so quickly, including by lawyers prominent in the previous administration.

In Liz Cheney’s world, detainees would not have any rights. She has decided they do not deserve to be afforded due process. We should create sham judicial proceedings or "kangaroo courts" that would deny due process rights in the name of expediency. In her world, we should deny rights to terrorism suspects, at least in part, because terrorists do not respect the rights of others.

But, here is the thing, that is what makes them terrorists. Liz Cheney would want us to do the same. She wants us to be more like them. It is her who is expressing anti-American values!

As I said in a previous post, I greatly admire attorneys who make a commitment to represent truly unpopular clients. It takes courage, determination and conviction and represents the best of our profession.

I commend the administration for recognizing the value of commitment to doing the right thing, to defending the rights of the accused, to defending the constitution and that which makes our legal system fair and valid. I am disappointed, on the other hand, to have heard reports that the administration is considering abandoning its decision to conduct criminal trials in favor of military tribunals; but that is a different issue we can talk about some other time....

Here are the links to an article in the Blog of the Legal Times on the controversy over the video and to one in the ABA Journal.com in which ABA President Carolyn Lamm criticizes efforts to smear the reputation of the Justice Department lawyers. Here is the link to an op-ed piece in the Washington Post called "A Shameful Attack on the US Legal System."


UPDATE: Here is a copy of the video that started the whole controversy:




UPDATE #2: My wife read this and asked me to post something on her behalf. Here is what she wants to say: “Liz Cheney can kiss my ass.”

Podcast on IOLTA Accounts

The Legal Talk Network has posted an informative podcast on the many details that relate to keeping IOLTA accounts. You can listen to it by clicking on the "play button" below or, if you can't see the button, you can find the program here.  If you can see the program below, you can also download it by clicking on the three dots on the right side of the volume control.

Attorney for defendant in Fort Hood shooting starts a blog

CNN is reporting here that John Galligan, the attorney for the Army psychiatrist implicated in a shooting at a Texas military base, has responded to a military gag order by starting a blog on the case. More here.

For his dedication to his role, Simple Justice praises Galligan stating that "Galligan's representation of Hasan reflects the best of our profession. It's not about his personal definition of justice, but about his duty to his client. . . . By creating [the] blawg, John Galligan made clear that his duty is to zealously represent his client, and that the villification of Hasan in the media requires some degree ot leveling the playing field, whether the Army agrees or not. John Galligan is unapologetic for being Nidal Hasan's defense lawyer, and is clearly willing to face the consequences for doing his job well."

I greatly admire attorneys who make a commitment to represent trully unpopular clients. It takes courage, determination and conviction. Go take a look at the blog and particularly at the comments that people are posting to get a sense of how difficult it can be to zealously stand up for the rights of the accused.

Ethics opinion on the relationship between a lawyer representing a client with diminished capacity and a guardian at litem

A new ethics opinion (no. 353) from the District of Columbia (available here) examines whether a lawyer representing a client with diminished capacity can seek the appointment of a substitute surrogate decision-maker when the current surrogate decision-maker is making decisions for the client against the advice of the lawyer.

It concludes that "A lawyer representing an incapacitated person with a surrogate decision-maker should ordinarily look to the client’s chosen surrogate decision-maker for decisions on behalf of the client and accord the surrogate decision-maker’s choices the same weight as those of a client when the client is unable to express, or does not express, a contrary view. A lawyer may not substitute her judgment for the judgment of the surrogate decision-maker when the surrogate decision-maker is acting within the scope of the power afforded to her by law, was selected by the incapacitated person before becoming incapacitated, and is not engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner. If the surrogate decision-maker is engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner, then the lawyer may take protective action including seeking a substitute decision-maker. The lawyer may not withdraw because a withdrawal will substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist."

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