On the difficulty of imposing consistent sanctions, again

Law.com is reporting today that a nine-member District of Columbia Court of Appeals Board on Professional Responsibility has issued a split recommendation on sanctions for the misconduct of a former assistant U.S. Attorney for the District of Columbia. Four members recommended disbarment, three recommended a three-year suspension, and two recommended a one-year suspension. Because none of the recommendations was in the majority, the final decision will be up to the D.C. Court of Appeals. For a copy of the the board’s report and recommendation go here. For the full story from Law.com, go here.

Sanctions for conduct outside practice of law

What sanctions would you impose for the following conduct?

"Lawyer X left work, consumed alcohol, then fled from the police and ran eight red lights and stop signs while exceeding 100 mph. He then intentionally rammed another vehicle occupied by others in an attempt to cause great bodily injury, and fled the scene of the collision without stopping. Eventually, Lawyer X pled guilty to felony evading while driving recklessly, misdemeanor driving under the influence of alcohol/drugs, misdemeanor hit and run with property damage, and an amended felony charge of battery."

In the actual case, Lawyer X was suspended for one year and one day. What do you think: too much, too little, just right?

Florida case asks whether inadequate funding of public defender's office results in violation of consitituional rights; Michigan says no.

Here is a link to a comment posted in the Crim Law Prof Blog discussing State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010), a case to be heard by the Florida Supreme Court that asks whether the limitations imposed by inadequate public funding of a Public Defender's office results in a violation of the constitutional rights of the defendants the PDs represent.

In this case, the Public Defender's office of Florida's 11th district asked the court to be relieved of its obligation to be appointed to represent all future non-capital felony cases because the office's inadequate funding resulted in such an overload of cases for each individual lawyer that they felt they were not able to comply with legal and ethical duties to the clients. The lower court granted the request and the case is now under review.

Interestingly, the Missouri public defender's office has also decided not to take any new cases (here).

In a similar case, the Michigan Supreme Court recently reversed itself and threw out a lawsuit that was aimed at holding the state responsible for failure to provide adequate funding to hire lawyers for poor people accused of crimes. Go here for that story.

Thanks to the Legal Ethics Forum for the information.

Proposed new rules re online advertising criticized in Florida

The ABA Journal.com is reporting that "[s]tringent new Florida Bar rules on attorney online advertising have ignited a firestorm, attracting criticism from a sweeping array of groups," including law firms, the American Civil Liberties Union and the FTC. Go here for the full story.

UPDATE: 7/11/10: Here is a story from Law.com on how Florida's largest law firms are starting to band together to protest the regulations, largely on First Amendment grounds.

Fools for clients....

Have you ever heard the expression "a lawyer who represents him or herself has a fool for a client"?

Here's a new Ninth Circuit case that puts a slightly different spin on the notion of fools for clients even though they were not lawyers. In US v. Johnson, the trial judge conducted a hearing and "practically begged [the defendants] to accept counsel but they refused." The court then concluded that "[t]he record clearly shows that the defendants are fools, but that is not the same as being incompetent."

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

Sanctions for improper comments before the jury and conduct during trial

Last month a jury awarded $8 million in compensatory damages (see here) in a case against pharmaceutical company Merck in a trial related to injuries caused by its prescription drug Fosamax.

Today, Pharmalot is reporting that the plaintiff's attorney is facing sanctions for his behavior during the trial and certain comments during closing arguments. The court's order imposing the sanctions is availble here.

The order states that “[d]uring the trial of this hard fought case, Mr. Douglas repeatedly acted in an inappropriate manner before the jury and made several improper and/or factually incorrect arguments in summation after having been admonished.” Among other things, the order states that the attorney claimed the FDA has an “incestuous” relationship with drugmakers and offers cursory reviews and expedited approvals “in exchange” for funding, a reference to the user fees industry pays the agency.

Quite frankly, I don't have much of a problem with that statement.

But the story does not end there. There were other, more important, problems such as the fact that, according the the report, the attorney "misstated a report submitted as evidence by Merck; mentioned punitive damages when he wasn’t supposed to do so; improperly injected his own opinion concerning the evidence and improperly referred to adverse event reports." Some of these are clearly violations of duties in ABA Model Rule 3.4.

In addition, the order states that the attorney engaged in improper conduct for “repeatedly disparaging defense witnesses and generally acting rudely to defense counsel in a manner that cannot be fully captured in the record: using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing, and admittedly ‘fooling around’ and ‘making fun.’”

How not to practice law update

Here is an update on the how not to practice law list so far (each item is a link to its own post/story):

ask client to pay fees with drugs

insult the judge (preferably in writing)

write a bad brief

don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)

if you make a mistake, lie to cover it up

pay your bar dues with a check from your client's account

convince clients to give you title of their house so they avoid foreclosure, then get them evicted

let the client dictate (bad) strategy

ask client to pay fees with sex

park in the handicapped parking spot

lie

get married when you are already married

show up to court drunk

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

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

Here is a new addition to my on-going list of real stories that illustrate some relatively simple/straighforward things you should not do... or, as I like to call it, my how not to practice law examples.

The Legal Profession blog is reporting today that a laywer in California has been suspended for two years after he was convicted of one count of felony cocaine possession after it was shown that he accepted crack cocaine from a client as payment of a $175 bill. To be reinstated, the lawyer will also have to show he successfully completed a rehabilitation program and will have to pass the MPR Exam again.

Georgia does not invalidate certificate of merit requirement; Washington does

A few days ago, I argued against rules that require a plaintiff in a malpractice action to file a "certificate of merit" with the complaint. See here. The Legal Ethics Forum is now reporting that the the Supreme Court of Georgia has joined New Jersey in recognizing the validity of this type of requirement. The case is called Walker v Cromartie and it is available here. The court rules that it's not unconstitutional for the state to require professional malpractice plaintiffs (even indigent ones) to file expert declarations with the complaint.

Interestingly, this news item comes at the same time it is being reported that the Supreme Court of Washington has ruled a 90-day notice requirement in medical malpractice cases unconstitutional. The same court struck down the certificate of merit requirement last September. Seattlepi.com has the story. (Thanks to the TortProf Blog for the info and the link.)

More comments on the issue of privilege and the unlicensed attorney

Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.

Can client claim privilege if client does not know his attorney is not licensed? -- UPDATED

A federal court magistrate in New York has decided that information shared with someone the client mistakenly thought was a licensed lawyer is not protected by the attorney/client privilege.

In this case, a trademark infringement claim by Gucci America Inc. against Guess Inc., Guess sought discovery of Gucci's communications with its in-house counsel Jonathan Moss, who was not licensed to practice law in any state at the time. He had been a member of the California bar until 1996 or 1997, but then became inactive. Gucci claimed the communications were protected by the attorney-client privilege but the magistrate disagreed.

In his order, the magistrate states that Gucci cannot "cloak itself under a veil of ignorance" to avoid handing over to a competitor communications with its former chief in-house counsel and held that Gucci could not justify its "mistaken belief" since the company "was plainly in a position to confirm the extent of [Mr. Moss'] qualifications as a legal professional and failed to do so."

Over at the Legal Ethics Forum Prof. Stephen Gillers argues that the decision is wrong because arguably "Gucci officers acted reasonably. The fact that they could easily have discovered [the lawyer's] inactive status (stressed in the opinion and by Guess?) doesn't mean they were unreasonable in accepting that he was a lawyer under the facts of the case. And a lawyer can be inactive one place and active elsewhere."

I agree with this, up to a point. It depends on what the client knew and when. If they knew the guy was not an attorney and confided in him anyway, I don't think the client has a right to then claim the privilege. But if they were, as Prof. Gillers points out, reasonable and really did not know of the attorney's inactive status, I would agree the client should be given the benefit of the privilege. Remember that the attorney client relationship can arise out of a misunderstanding - when the client believes there is a relationship because the attorney was not clear about whether he or she would accept the representation. (remember the Togstad case?)

Following that same line of reasoning, a client should be allowed the benefit of the relationship (the privilege) if the client reasonably believed the attorney was an attorney and that they (client and attorney) had a professional relationship.

Now that the real status of the lawyer is known, another question arises. What if the court takes the magistrate's recommendation and rules against Gucci; can Gucci sue the attorney for malpractice for having hurt Gucci's case because he was negligent in handling his licensing requirements. And, if so, can the attorney claim comparative negligence because Gucci failed to institute a policy to check on the licensing status of its in-house attorneys?

The magistrate's order is available here. For more on this story go to Law.com.

UPDATE #1 (July, 2010): Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.

UPDATE #2 (Jan 2011): The magistrate's decision holding that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege was overturned.  See here.

Georgia Supreme Court reverses conviction and asks lower court to determine validity of state's public defenders system

In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel. More on this story on Law.com and the Legal Ethics Forum.

Suspension for insulting the judge

It is unfortunately no secret that not all judges are competent or fair. It is not uncommon to read opinions disciplining judges or allegations of corruption. Yet, what is the best way to deal with the situation? How should a lawyer appearing before a court address a problem with the judge? That is a very difficult question and not an easy decision to make. Sometimes an attorney must react even if it means risking being found in contempt. But there are obvious risks involved. Tread carefully.

Here is an example. The Legal Profession Blog is reporting today that the Illinois Review Board has recommended a six-month suspension for an attorney who made disparaging remarks to a judge. The attorney apparently was angry about the judge's decision to summarily place a fourteen year old child with someone he (the lawyer) claimed to be an addict. In a letter to the judge, the lawyer stated that "As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?"

Although portions of the letter are improper, I am not sure I would have imposed a six month suspension for it. Unfortunately, this was not an isolated incident. The lawyer reportedly also insulted administrative law judge in a different case.

The opinion is available here.

Improper comments?

The following two paragraphs are from actual statements made in Cook County Court in Illinois. Are they examples of acceptable, harmless rhetoric or should they be considered improper?

The word ‘strict’ in the phrase ‘strict liability’ does not mean anything it is just a name! It is created to intimidate people, it is self-made invalid authority, it is meant to implant in people undeserved and unjustified respect to the ordinance built on fear and misunderstanding but empty inside and not applicable in my case.

-------

Robbery, it is a good business as it is something for nothing – a pure gain. Germans do not do it anymore after their discouraging experience 65 years ago (1945) as it is too dangerous now and people are watching them. Therefore they retreated to more subtle ways such as cheating, lying and acting dishonestly under the cover of law, usually as lawyers, exploiting us on this way.



Thanks to On the Record in Cook County for the quotes

NLJ editorial on the need to expand legal aid services

"With the legal needs of the poor rising in volume and intensity, more access to legal aid is a needed stop on the road to economic recovery." This is the start of an editorial published today in the National Law Journal online, available here.

More on the Supreme Court's decision in Holder v. HLP and possible constraints on attorney advice

Yesterday I said I would continue to update the list of links to comments on the recent decision by the Supreme Court in Holder by simply adding them to a previous post. But I want to point out a particularly interesting one here.

In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.

She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."

On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[r]estricting … attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.

I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.

It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.

Sentencing hearing video

Last May, I came across this video just as it became public over the internet. I mentioned it in class briefly because it raises many interesting questions but, unfortunately, I did not have enough time to discuss it in detail.

The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.

When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.

One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.

The issues I think the video allows me to explore are these:

The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)

This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.

I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?

Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")

Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?

Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.

If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.

Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):




PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....

More comments on yesterday's US Supreme Court opinion

Here are two more links to comments on yesterday's Supreme Court Opinion upholding the criminalization of "material support." I will keep adding links to this post if I see more from now on.

Go here for a comment by Jonathan Turley, in which he makes the following very interesting point: "Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts."

For more coverage of the case go to:

The New York Times

Law.com

Room For Debate (NY Times)

The Wall Street Journal

Blog of the Legal Times

Wall Street Journal law blog

PBS segment on yesterday's Supreme Court's decision

For a transcript of this segment, go the PBS newshour website.

NY Times publishes debate on today's Supreme Court decision on criminalizing advocacy

The New York Times.com's "Room for Debate" section has just published three short Op-ed pieces debating today's Supreme Court decision on the constitutionality of a statute criminalizing advocacy for certain groups. The pieces are by David Cole (Georgetown University Law Center), Richard A. Epstein, (University of Chicago Law School) and Stephen I. Vladeck (American University Washington College of Law). Cole sets the stage by stating that "[f]or the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity." Go here for read the three articles.

Panel discusses inadequacy of legal services for the poor

The Blog of the Legal Times is reporting that last week a panel of legal experts at the American Constitution Society’s annual conference discussed the question of how to improve the indigent defense system. Stephen Bright, president and senior counsel at the Southern Center for Human Rights in Atlanta, Ga., outlined a series of problems facing the criminal justice system including a lack of a “true adversarial system” in many parts of the country, ineffective indigent defense programs, the use of the process to punish people unduly, and “no real way to put a check on the process.” In response, Laurence Tribe, the former Harvard law professor who in February was selected to lead the Justice Department’s newly formed Access to Justice initiative, argued that the answer could in part come from big law fimrs pitching in more frequently on a pro bono basis. Go here for more on the story. Given that we have always expected and encouraged "Big Law" to contribute pro bono services, I am not sure I would count on this as the solution to the problem.

Also, as an aside, it is comments like the ones by Tribe that remind me why it is upsetting to me to see that some states (like Illinois) are actually eliminating the rule that encourages pro bono services from their Rules of Professional Conduct.

Attorney suspended for disclosing confidential information in order to secure custody of child

Last week, the Legal Profession blog reported on an interesting case that shows that there are severe consequences to the disclosing confidential information, even if it is done with good intentions. The case also demonstrates once again, how becoming personally attached to a client can cloud an attorney's good professional judgment.

In this case, an attorney represented a client in a divorce. During the course of the representation, the attorney learned that the client was a drug user. Nevertheless, he began an intimate relationship with the client and began to act as a "de facto father" to the client's daughter.

Some years later, while still counsel of record for the client, the attorney filed a petition for custody of the daughter under the same court number as the divorce action. As part of this process, the attorney disclosed the confidential information about the client's drug use.

The attorney's intentions were good. He disclosed the information out of concern for the daughter's welfare. However, his conduct was a violation of his duty to the client.

Based on these facts, an Arizona hearing officer has recommended a six-month suspension and one year of probation.

NJ court holds plaintiff is required to file a "certificate of merit" in order to file a legal malpractice action.... Bad idea

Last week the New Jersey Appellate Division held that a plaintiff in a legal malpractice action is obligated to serve a timely affidavit of merit on attorneys as part of the process in a legal malpractice claim. New Jersey has a statute that requires filing such a certificate in cases against a number of professions but it defines "attorney" as a person licensed to practice law in the state of New Jersey. In this case, at least some of the defendants had provided legal services from offices outside the state and were not admitted in New Jersey. The case is called Lacrosse v. Klehr, Harrison, Harvey, Ranzburg, Ellers, LLP, and is is available here.

The court only imposed the requirement prospectively, however, because prior state case law was unsettled and federal decisions on the subject attempting to apply New Jersey law had taken arguably different approaches.

My problem with this is not the holding in this case in particular but with the notion that a plaintiff should be required to file a certicate to begin with. The court here was simply deciding whether the terms of a particular statute applied to the facts of the case. I just don't like the statute.

I think the requirement of a certifcate of merit is a bad idea for the same reason I think requiring certificates of merit in medical malpractice cases is a bad idea. In fact, I have stated before that if forced to choose between caps for damages and certificates of merit requirements I would have to support caps.

Both caps and certificates of merit requirements are popular "tort reform" measures, which, as all such measures, are looking to do one of two things: either to make it more difficult for victims to get compensation (by making it more difficult for them to get to court) or, if they can get compensation, to reduce the amount of money they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former.

It is, admittedly, a close call as to which would be worse for victims, but I am leaning towards saying that the certficate requirements are worse. With the cap, at least the victim does get some compensation and, as long as the cap is generous, many plaintiffs may not be affected. Of course, those who would be affected would be precisely those who need the compensation the most - those who suffer catastrophic injuries - but I as I said, I am being forced to choose between bad choices and with this one at least the victims get a chance to get something.

In contrast, the approaches to reform that seek to make it more difficult for victims to find representation, to find expert witnesses willing to certify their claims, and to make it more difficult to file claims to begin with, if successful, leave the victims with no recourse and no recovery at all.

Thanks to the Legal Profession Blog for the information. For more on the case go to Law.com.

Supreme Court upholds limits on advocacy for certain groups

The US Supreme Court has announced today its decision in Holder v. Humanitarian Law Project, upholding the federal law that bars "material support" to groups designated as "foreign terrorist organizations," including advice or advocacy for nonviolent, peaceful, lawful ends.

I a very long opinion that I have not had a chance to read yet, the Court ruled 6-3 that the government may prohibit all forms of aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities. Justice Stephen Breyer wrote a dissenting opinion (joined by Justices Ginsburg and Sotomayor) in which he rejects the majority's conclusion "that the (U.S.) Constitution permits the government to prosecute the plaintiffs criminally" for providing instruction and advice about the terror groups' lawful political objectives. The full text of the opinion is available here.

Thanks to Renee Newman Knake of the Legal Ethics Forum and to Law.com for the news and links. For more on the opinion check out this article in the Wall Street Journal. See also the Blog of the Legal Times and the Wall Street Journal law blog.

How not to practice law: write a bad brief

Here is the link to a good short article on how to wrire a bad brief. It is called Writing Bad Briefs: How to Lose a Case in 100 Pages or More.

In includes great advice, such as:

-do not pick the more important issues and arrange them in order of strength; instead discuss as many issues as you can think of and arrange them alphabetically

-mistate the law or, even better, make it up

-citations are lame and a sign of weakness

-attack the court, opposing counsel, and your adversary with insults, condescending language, snide remarks, irony, and humor

-bury the bad stuff; concede nothing; fight to the end, especially on the little things that don’t matter

-be superficial

... and more.

Information, links, briefs and more on Connick v. Thompson

Last March I reported 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 a wrongful conviction in a murder case. Here is the link to the Supreme Court WIKI page on the case which has links to pretty much anything you need to research the case: the briefs, the opinion of the lower courts, the cert petition, background information and more. This page gets updated with more links as the case progresses so save the cite and check it frequently if you are interested in this case.

Lawyer sleeps with client's wife.... no breach of fiduciary duty says the Court

Would it be a breach of fiduciary duty for a law firm partner to have a sexual relationship with his client's wife? Not according to the Supreme Court of Mississippi! The court's opinion is available here. More on the story here and here.

Thanks to John Steele of the Legal Ethics Forum for the links.

New proposals to facilitate limited representation in Illinois

There is a lot of talk about the concept of "unbundling" of legal services these days. Unbundling usually refers to an agreement in which the attorney agrees to help the client with a distinct and limited task. For example, the attorney would agree to review a document that the client will use to negotiate a deal by himself. The attorney's representation in such circumstances is "limited" to reviewing the document; not to negotiate for the client, not to represent the client in any proceeding, etc. Just reviewing the document. For everything else, the client is either on his or her own or will rely on other lawyers.

Much of the recent discussion about unbundling attempts to spin the notion of providing limited representation as an attempt by lawyers to provide some access to legal representation to people who could not otherwise afford to hire the lawyer to represent them in all aspects of the case.

The problem I am having with all this is that we have always known the vast majority of the legal needs of the poor are not being met AND we have always had the ability to limit the scope of representation. There is nothing new about this. (See Rule 1.2 and its comment.)

So why all of a sudden are lawyers so worried about the needs of the poor? The "negative" answer is, of course, that it is because the economy is bad and so many lawyers are desperately seeking clients; which means lawyers are more willing to do little things for people they would normally not want to represent because lawyers need the money.

This was the underlying debate in the discussion on "ghostwritting" I posted recently (here and here). The underlying question was whether an attorney who writes a court document for a pro-se litigant should be required to disclose (in the document) that the lawyer helped the client prepare it. A recent ethics opinion in the state of New York concluded that attorneys could remain incognito. In response it has been said that anonymity can result in abuses and in lawyers taking advantage of the clients they are supposedly trying to help by unbundling the services. As one blogger put it "the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don't know better."

This debate is now before the Supreme Court of Illinois. It is considering some proposals to amend certain rules to regulate limited representation in the state. The proposals are available here.

Interestingly, the proposal regarding "ghostwriting" is the opposite of the view adopted in New York. The proposal reads as follows:

An attorney may assist a self-represented person in preparing a pleading, motion, or other paper. The self-represented person shall sign the pleading, motion, or other paper, and on the signature page the attorney shall insert the notation "Prepared with assistance of counsel under Supreme Court Rule 137" followed by the attorney’s name, firm, or organization name (if any), business address, and phone number. This notation does not constitute either a general or limited appearance by the attorney. An attorney providing assistance may rely on the self-represented person’s representation of facts without further investigation by the attorney, unless the attorney knows that such representations are false. ...

Prosecutors seek to vacate sentence admitting to "inadvertent nondisclosure"

In yet another example of either misconduct or negligence by prosecutors, the Blog of the Legal Times is reporting that federal prosecutors want a prison sentence vacated and the indictment dismissed by the U.S. Court of Appeals for the D.C. Circuit because of what they call an “inadvertent nondisclosure” of potentially impeaching material about the defendant's statement to police. Go here for a copy of the prosecution's three-page motion. For many more stories regarding prosecutorial misconduct over the last year and a half go here.

Can flat fees be non-refundable?... again...

As you probably know, the basic standard to determine if a fee is ethical is that it must be "reasonable" and typically the rules of professional conduct (or its comments) will provide a list of factors to consider when trying to determine if a fee is, in fact, unreasonable. Interestingly, one factor usually not mentioned is whether the fee is "non-refundable."

Can an attorney charge a non-refundable fee or would that be, by definition, unreasonable. Given the state of things, the accurate but not very helpful answer has to be: that a non-refundable fee is OK as long as it is not unreasonable. Not very helpful, is it?

Not surprisingly, thus, there has been a lot of debate as to whether attorneys can charge non-refundable fees. I recently posted a comment on this here.

Enter the Missouri Advisory Committee on Professional Responsibility, which just about a month ago issued a new opinion on the matter in which it concludes that non-refundable fees are to be considered unethical in Missouri. (Go to the Ethical Quandary blog for more).

Saying that non refundable fees are just not allowed sounds simple enough, but, in reaching the conclusion the Committee makes a number of mistakes and I am not sure that the end result is justified.

The Committee starts by stating that there are "two types of cases [that] provide good examples of situations in which supposedly nonrefundable fees are involved." The first example is a case “where the client pays a flat fee or makes an advance deposit on fees against which the attorney will bill on an hourly basis."

Here is the first problem. An "advance deposit" such as the one described is what other jurisdictions typically call a "security retainer" which can never be non-refundable. There has never been any debate about this.

If we take this "example" out of the equation, what is left is what the Committee calls "a flat fee."

From here, the Committee points out that a "flat fee" is not earned automatically when agreed to. The fee is only earned when it is, well, earned, and it is not until then that there is an obligation to pay it. There is a certain obvious logic to this reasoning but it still does not explain when the flat fee is actually earned other than to state that the fee is earned when the representation is completed.

If the representation ends before the representation is completed, however, the Committee states that the attorney must analyze the factors set out in the rule regarding fees "to determine the extent to which the attorney must refund all or a portion of the fee."

In other words, the attorney must determine if not refunding the fee would result in an unreasonable fee or as the Committee explicitly states it: "because an attorney may not charge or collect an unreasonable fee, the attorney must determine that the fee was reasonable."

And so we are back where we started... is a non-refundable fee unreasonable? Only if we determine that it is.

In the end, I am afraid this analysis adds nothing and clarifies little. The Committee essentially concludes - without stating it - that a flat fee has to be analyzed just like the "advance payment" described in the beginning of the opinion (aka a "security retainer") which has never been allowed to be non-refundable. After reading the opinion, all we know is that you can't call the fee non-refundable, that you can call it "flat," that it can't be unreasonable and that in some cases (but not others) not refunding part (or all) of the fee would be unreasonable. Nothing new there.

What would be new, I think, is to consider whether allowing non-refundable flat fees in some cases might actually be a good alternative to other forms of fees. I discussed this issue here.

You can find the full text of the opinion here.

One final note of interest: the Committee explicitly discourages attorneys from using the term "retainer" from now on because "the term has taken on many meanings which are inconsistent with one another and which are confusing to clients." And, in support of this conclusion, the Committee cites Dowling v. Chicago Options Associates, Inc., 875 N.E.2d 1012, 1018 (IL 2007), an Illinois case, that I have long argued makes little sense... but that is another story....

For more on the Missouri Advisory Committee opinion go to the Ethical Quandary blog.

Three new TV shows (with trailers)

With the recent demise of the original "Law & Order" and "Raising the Bar," the major networks are apparently feeling the need to introduce new law related shows. Here are the trailers. One is called "Outlaw" about a Supreme Court Justice who decides to retire and go into private practice. Another is called "The Defenders" and is about a pair of criminal defense lawyers. The third one is "Harry's Law" about people brought together by fate to form a law firm.

I enjoy watching law related shows and movies and reading "legal thrillers" as much as anyone, but I often wish they were much better than what they usually are. I will give all of these a chance but from what I can see in these trailers at least two of them appear to be based on tired old stereotypes: either every client is innocent (Outlaw) or criminal defense lawyers are sleazy (The Defenders), aside from the fact that apparently all lawyers are young, beautiful, fit, sexy and have lots of sex in the office and law libraries. Outlaw also seems to have the stereotypical "team" of characters (common to so many "heist" type movies): the outlaw, the rebel, the intellectual, the smartass, the computer genius, etc. If they add a demolitions expert maybe they could compete with the A-team. The Defenders looks like it might be more of a comedy "detective" show; more about trying to figure out "who did it" than about legal issues.

Harry's Law seems to escape the mold - or at least part of it. This one is produced by David E. Kelley, producer of three relatively successful law related shows. The trailer has some pretty funny lines and Kathy Bates is always entertaining. But, given that I didn't like any of the three previous David E. Kelley shows, I will have to wait and see...

But I am getting way ahead of myself. Let's give them all a chance.... Maybe they will last longer than the last few attempts ... Does anybody remember "Shark" or "Eli Stone"?

No incentive for lawyers to act properly

In one of today's sessions at the annual conference of the ABA Center for Professional Responsibility we discussed cases of misconduct in the process of litigation - both during the pre-trial process and the trial itself. After illustrating many instances of misconduct with cases from the last 12 months, we discussed the possible reasons for the many reported instances of misconduct and there seemed to be some consensus that courts are not doing enough to discourage improper conduct.

Here is a recent example. Pharmalot is reporting that a federal court judge has imposed sanctions on Novartis for misconduct in the process of discovery. However, when I read the judge's opinion (here) what I see is a little different.

In this case, Novartis asserted it did not have any direct to consumer ads to produce during discovery because it never ran any direct to consumer ads. After plaintiffs lawyers found examples of ads in a magazine distributed to cancer patients, the company claimed they had not been produced because those ads were what it called "direct-to-patient ads" (as opposed to direct to consumer ads; see the difference?).

The plaintiffs asked the court to impose sanctions and to mandate the payment of attorney's fees. The Court granted the request for attorney's fees, but denied the imposition of sanctions.

The Court found that the distinction between "direct to consumer" and "direct to patient" ads was misleading concluding that "[t]here is no logical separation between consumers and patients in this context. The target market for these limited-use drugs is cancer patients and cancer patients are the consumers of Novartis products.”

The judge, however, denied the requested sanctions finding that there was no showing that the defendant "deliberately withheld" the documents in question. Apparently, the defendant had, in fact, produced one copy of a magazine which contained an ad as part of its first production of documents.

It seems to me the court did not really think this one through. The facts of the case show that the defendant drugmaker affirmatively denied the existence of relevant ads (in deposition testimony) while at the same time apparently produced one example of such an ad in a production of documents. When exposed with more ads found independently by plaintiffs' counsel, the defendant changed its legal claim to attempt to justify its initial denial of evidence it is now clear it knew existed.

These facts suggest to me there is more to the story and the court is not doing anything to find out. I think the court should have tried to determine if, in fact, the defendant had acted with intent to withhold the information in order to decide whether to impose sanctions. I think the facts suggest at least a possibility that it did. One question I have is how come the first magazine ad went undiscovered if it was in fact provided in response to a production of documents request. Was it perhaps because the production was an attempt to bury it within tons of other documents? If I had been the judge, I would have liked to find out about that before denying the requested sanctions.

The court did not call for an evidentiary hearing and simply said there is no evidence to suggest misconduct. In doing so, it gave the defendant (and its lawyers) a pass.

This is all reminiscent of Washington St. Phys. Ins. Exchange & Ass’n v. Fisons Corp, 858 P.2d 1054 (Wash. 1993), in which the court imposed financial sanctions for somewhat similar conduct.

In neither case, though, were the attorneys disciplined.

Essay on the prosecutor who "threw" the case

My students will remember the story of the prosecutor who decided to surrepticiously help the defendant's lawyer win a case because the prosecutor had doubts as to his own case. Here is a link to an essay on the case by Professor David Luban of Georgetown University.

Thanks to Legal Ethics Forum for the link.

Illinois Supreme Court finally decides case of lawyer who tampered transcripts to get a job

Back in January I posted my criticism of the Illinois Review Board's decision to recommend only an 18 month suspension in a 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. For my discussion on the case go here, here and here.

Today, I am pleased to report that the Illinois Supreme Court has shown some common sense and ignored the recommendation. It has decided to impose a three year suspension. I, of course, would have voted to disbar the lawyer, but that is another story. For more on the story go here and here.

ABA Conference of the Center for Professional Responsibility

I am currently in Seattle participating in the annual conference of the ABA Center for Professional Responsibility. This morning I attended a very good panel on whether the rules should be amended to allow screening for concurrent conflicts of interest situations. Eventually, I will post some of my thoughts on this, but if you want up to the minute news you can go to the Legal Ethics Forum where Rob Vischer is blogging "live" (or close to it). Here is the link to his first report; here is the link to the second one. After that you should go to the main link to the Forum and scroll down.

How not to practice law: don't ever read anything before using it

I have been away from the blog for some time while grading exams and doing some traveling but I will get back to it regularly soon. Meanwhile, here is a new entry to in our on-going list of things that help us describe how NOT to practice law, In this case, though, the end result fortunately for the lawyers involved is not discipline but embarrasement.

This is the tale of a law firm that scanned a certain deed to a piece of property to include the information in a foreclosure notice for publication in a local newspaper. Apparently, no one - either at the firm or the newspaper - read the notice before it was published. It read as follows: “The said land shall not be sold, leased or rented to any person other than of the Caucasian race.”

After a complaint was filed with the Massachusetts Commission Against Discrimination, the statement was removed from subsequent editions of the newspaper and both the law firm and the newspaper issued appologies.

Electronic solicitation after the NY Staten Island ferry crash

The New York Personal Injury Blog has a good comment on the ways in which some firms are using Google to make sure the search engine directs users seeking information about the Staten Island Ferry crash to their websites. Go here for the story.

Lawyer mobility and state jurisdictional barriers

The Ethical Quandary blog has a short report on a trio of recent decisions that address lawyer mobility and, according to the authors, further erode state-based jurisdictional barriers. Go here for the full story - which is actually very short.

Sanctions for not locating electronically stored information

Here is a story about why, "although data storage media have changed, old practices for collecting client information are as applicable as ever."

Senate proposal would eliminate protection for lawyers against private lawsuits

The Washington Post is reporting today (here) that a proposed amendment to the larger financial regulatory overhaul bill would allow shareholders to file private lawsuits against anyone who aids or abets corporate fraud -- potentially exposing lawyers who advise public companies to a category of litigation to which they have previously been immune. According to the report, the amendment was introduced by Sen. Arlen Specter (D-Pa.) with the support of 11 other Democratic senators. It provides that "any person that knowingly provides substantial assistance" to individuals and companies committing securities fraud would be as liable as those they were assisting, which would essentially overturn the US Supreme Court's decision in Stoneridge Investment Partners v. Scientific-Atlanta (2008), which held that third parties are not liable in private lawsuits for participating in corporate wrongdoing if they did not directly mislead investors.

How not to practice law: if you make a mistake lie to cover it up

Here is a new addition to our "how not to practice law" series. This one illustrates a basic principle that I try to teach my students (and my kids for that matter): if you make a big mistake, don't lie to try to cover it up. Accept the fact you screwed up and make a plan to fix the problem or deal with the consequences.

In this case, an attorney did not file a lawsuit until after the applicable statute of limitations had expired. He then lied about why this happened and misrepresented the accident date in the complaint by a year to conceal the statute of limitations problem. Eventually, the case was dismissed which precluded any recovery for the client's substantial injuries. To make matters worse, the attorney did not have malpractice insurance so the client also did not have a realistic chance to recover anything from the attorney in a legal malpractice claim. Finally, when facing an investigation for the handling of the case, the attorney did not respond to Bar Counsel's written requests for information.

Although, at the time, the attorney was undergoing a nasty and unexpected firm dissolution in which he was locked out of his office, marital discord and health issues, the court found that these factors did not explain or mitigate the blown statute and ensuing acts of serious dishonesty.

The case is called Attorney Grievance Commission of Maryland v. Bleeker and it is available here.

Thanks to the Legal Profession Blog for the information.

NBC retires Law & Order

I often make references to the tv show "Law & Order" in my classes. Now, pretty soon I will have to do something else I do sometimes before making references to popular culture in class. I will have to ask my students whether they remember "Law & Order"... Last week, NBC announced that the show will end its 20-season run on May 24.

I have been a fan of the show for many years, but I have to admit it had lost its way a long time ago. I became a fan of the show because it used to be a show about legal issues, not about plot lines. The stories were written and designed to illustrate issues or ideas and usually did a a good job of presenting the different arguments or viewpoints on those ideas. Eventually, though, the show became just another "detective show" - a "who done it" - and the legal aspect of the show was just a setting for the plot to develop into figuring out who had done the crime and why. I continued to watch every now and then but pretty much stopped a couple of seasons ago.

If you started to watch the show only recently, you may want to rent the first few seasons. I think you'll be surprised at the different approach to the stories.

And while I am at this, let me report what is now old news: TNT is not bringing back the series "Raising the Bar" either. I was liking that one, which revolved around the relationships between public defenders, DAs and judges in New York courts. It was not bad - not great, but not bad- but it lasted only a couple of seasons.

Finally, this also reminds me of a not very popular show that did not last long either but I remember liking at the time: "100 Centre Street" (on A&E). I think I might try to find that one and check it out again this summer to see what I think after all these years...

SC takes a strong stance against discovery abuse

Last week, the South Carolina Supreme Court indicated that it would no longer tolerate impermissible fishing expeditions during the discovery process. Go here for the full story.

Can a lawyer disclose confidential information to reply to media reports about the lawyer?

Suppose a former client, for whatever reason, disseminates unfair or inaccurate descriptions about the lawyer and the lawyer's representation of the client. Assume the inaccurate information is publicized by the media. Can the lawyer disclose confidential information in order to respond to the former client’s unfair comments? Is that disclosure allowed as an exception to the duty of confidentiality or is the so-called "self defense" exception to the rule limited to cases where the disclosure is needed to defend against an actual "proceeding" against the lawyer?

That question is the subject of an interesting debate over at the Legal Ethics Forum blog (here).

NY highest court revives action challenging public defender system

Back in March I reported that a class-action filed in New York to challenge the state's public defender program by arguing that the system is so "dysfunctional" and in such a “crisis” it resulted in a violation the indigent clients' rights. (See here)

A few days ago, NY's highest court decided the appeal and reinstated the case. The case is called Hurrell-Harring v. State of New York, and it is available here. In its 4-3 decision, the Court concluded that the case could go forward only to the extent that it claimed that lawyers had not appeared for the plaintiffs at crucial stages of the criminal proceedings against them or were otherwise "unavailable" to consult with their clients. It held that specific challenges to the performance of attorneys could only be considered in individual criminal cases after defendants are convicted.

Go to Law.com, the Wall Street Journal blog and the Legal Ethics Forum for more on the story - and don't forget to check out the readers' comments.

Ethical issues related to internal investigations

Here is a link to a short comment on some of the common ethical issues related to internal investigations.

Interview re ethics issues

Every now and then, the "unreasonable dangerous products liability blog" posts brief interviews with law professors, practitioners and other commentators in the field of products liability law. Here is a link to an interview with professor Michael J. Virzi of the University of South Carolina School of Law. Virzi, a former prosecutor with the South Carolina Office of Disciplinary counsel, now teaches legal writing and chairs the South Carolina Bar's Ethics Advisory Committee. Here is a list of the questions addressed:

1. What recent developments in ethics law would you recommend that litigators be aware of in 2010?

2. What is the most significant ethics opinion to come out in the last year? Why is it significant?

3. What do you think is the most overlooked ethical rule? Why is it overlooked?

4. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?

6. What do you think is the best depiction in popular culture of an attorney facing an ethical issue?

Comment on the ghostwriting opinion

Here is a link to a short comment critical of the opinion on ghostwriting I mentioned in my previous post. It concludes as follows:

Should lawyers "ghost write" for pro se litigants, why not include the legend "prepared with the assistance of Joe Smith, an attorney duly admitted to practice law in the State of New York?" It's true. It's accurate. It holds Smitty, the lawyer who got paid, responsible for his work. And when Smitty's client screws it all up and comes back to blame Smitty for his failure to advise his pro se client that he didn't have a clue what he was doing or what services he needed, maybe Smitty will think twice before cashing that check for $37,52.No, the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don't know better.

NY ethics opinion allowing "ghostwriting" for pro se litigants

In a new Ethics Opinion, the New York County Lawyers' Association concludes that in most cases it is ethically permissible for a lawyer to prepare pleadings and other documents for a pro se litigant without disclosing the lawyer's participation to the tribunal or to adverse counsel. The opinion is available here. For more on the story go to Law.com.

New York Chief Judge Urges Greater Legal Rights for the Poor

The New York Times is reporting today that New York’s chief judge is calling for a new guarantee of a lawyer for poor people in civil cases, urging the state to expand the right to representation for the indigent. The full article is available here.

In making such a suggestion, the Judge is following California's pilot program to provide lawyers for indigent clients in civil cases. See my posts on October 13 and October 27 2009. Also, here is a link to a podcast of a discussion on this issue. (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.")

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.