Illinois Supreme Court rules attorney can't serve as attorney and guardian at litem in delinquency proceedings at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it. I stated that the way courts justified the practice "displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible."  Later I wrote a law review article on the subject (available here) in which I made a long argument in support of my position.

The Court did not grant the appeal in the case I wrote about in 2010, but some time later, it did grant the appeal in another case - In Re Austin M. - which raised the same issue.

I was glad the Court would be addressing the question, but I was not too optimistic about the possible result.  I thought the Court would continue to repeat the erroneous analysis that courts in Illinois had followed for many years.

Today I am very happy to report that the Illinois Supreme Court just released its decision in In Re Austin M. holding that an attorney may not assume the roles of advocate for a minor and guardian at litem simultaneously, finding that such “hybrid representation” constitutes a per se conflict of interest.  That is definitely the correct decision!

The opinion is available here.  For more on the case go to the Juvenile Law Center blog and here.

The opinion is long, but here are some of the most important passages:

    Austin’s initial claim on appeal is that the legal representation he received at his delinquency trial amounted to a denial of his right to counsel . . .  More specifically, Austin contends that, as a minor tried for a criminal offense in a delinquency proceeding, he had the right to a defense attorney, that is, an attorney who gives his client his undivided loyalty, who zealously safeguards his client’s rights and confidences, and who acts in accordance with his client’s wishes. Austin asserts that he was deprived of this type of counsel because his attorney. . . performed less as a defense attorney and more as a guardian ad litem (GAL).

    Austin contends that a GAL, unlike a defense attorney, owes a duty to the court and to society and may disregard a minor client’s wishes if the GAL believes it is in the minor’s best interests. . . . Further, Austin contends that his attorney’s “hybrid representation” deprived him of his statutory and constitutional right to counsel and constitutes a per se conflict of interest requiring reversal of his adjudication.

    The State asks us to reject this claim. . . . The State also maintains that even if Austin’s attorney did, in fact, function as both counsel and GAL at Austin’s delinquency trial, it is of no moment because this type of dual representation does not constitute a per se conflict of interest. According to the State, for hybrid representation to be reversible error, there must be evidence of an actual conflict of interest resulting from the hybrid representation.  Further, the State argues that nothing in the record indicates that Austin’s attorney’s performance was compromised in any way due to an actual conflict of interest. . . .

    Austin’s claim requires us to decide . . . whether “hybrid representation” is inconsistent with the statutorily and constitutionally guaranteed right to counsel afforded minors in delinquency proceedings . . .

   . . . .
   
    . . . [A] minor in a delinquency proceeding has a non-waivable right to be represented by a defense attorney. There is no statutory exception which would permit representation by a GAL—even one who is also an attorney at law.

    Minors in delinquency proceedings also have a constitutional right to counsel. . . .

    . . . .

    It is clear to us that a juvenile’s right to counsel in a delinquency proceeding is firmly anchored in both due process and our statutory scheme. . . .

    Given the above, the type of “counsel” which due process and our Juvenile Court Act require to be afforded juveniles in delinquency proceedings is that of defense counsel, that is, counsel which can only be provided by an attorney whose singular loyalty is to the defense of the juvenile. . . .

    . . . .

    In a delinquency proceeding, when counsel attempts to perform the role of GAL as well as defense attorney, the risk that counsel will render ineffective assistance or that an actual conflict of interest will arise is substantial. . . .

    . . . [W]hen a guardian ad litem is appointed in a delinquency case, it is generally because there is no interested parent or legal guardian to represent the child’s best interests. In these situations, the GAL must act in the role of a concerned parent, which is often in opposition to the position of defense counsel. . . .Further, a GAL—unlike a defense attorney—owes a duty to the court and to society. A guardian ad litem need not zealously pursue acquittal if he does not believe acquittal would be in the best interests of the minor or society.

    When counsel attempts to fulfill the role of GAL as well as defense counsel, the risk that the minor’s constitutional and statutory right to counsel will be diluted, if not denied altogether, is too great. . . . We conclude, therefore, that the interests of justice are best served by finding a per se conflict when minor’s counsel in a delinquency proceeding simultaneously functions as both defense counsel and guardian ad litem.

UPDATE:  I later wrote a law review article reviewing the opinion.  It is available here.

Comment on the split among courts on what happens when attorneys can't afford to pay sanctions

Here is a link to a short article on the fact that federal appellate courts are split over whether money sanctions issued against an attorney can be reduced when he cannot afford to pay.

Is it unprofessional not to carry malpractice insurance?

Some states do not require lawyers to have malpractice insurance.  Do you think it is unprofessional to opt not to get insurance?  Here is a short comment that makes a good argument that it is improper (in terms of professionalism) not to carry insurance.

Reminder: Aspiring Lawyers Should Not Engage in Terrorism

Reminder: Aspiring Lawyers Should Not Engage in Terrorism. Lowering the Bar explains here.

Supreme Court hints it may expand recent ruling on ineffective assistance of counsel

Lyle Denniston of the SCotUS blog is reporting that last Wednesday the Supreme Court "strongly hinted that one of last Term’s key rulings on the duties of criminal defense lawyers may get a prompt new look next Term, to see if it applies to death-penalty cases in Texas."  In a brief order, the Court put on hold an execution in Texas in a case that appears to be a major test of the impact of the Court’s 7-2 ruling last March in Martinez v. Ryan.  Go here for the full article (with links to the cases).

In Martinez, the Court created an exception to prior rulings that had strictly limited a convicted individual’s right to complain that a defense lawyer had not performed effectively at the trial holding that if a state did not allow an individual to raise that kind of claim until after the conviction has become final, a federal court can still decide the claim.  The new case will test whether and how Martinez applies to capital cases.

Covington & Burling sued for allegedly violating the "hot potato doctrine"

A former client of Covington & Burling (3M Corp.) has filed a complaint against the firm arguing that the law firm violated its duties to the client when it allegedly dropped the client in one matter to accept representation of another client (the state of Minnesota) against 3M.  The client is claiming a violation of what is sometimes referred to as the "hot potato doctrine" which considers it a violation of fiduciary duties when a lawyer abandons a client with the express purpose to claim the client is a "former" client which would allow the lawyer to take on a certain representation the lawyer would have been unable to undertake if the client had still been a "current" client.  You can read the complaint here.

Covington has asserted, on the other hand, that it agreed to represent the state of Minnesota in its litigation against 3M after confirming that the firm had no active matters for 3M and that there was no conflict based on any prior representation of 3M.  Covington has also stated that 3M signed a waiver in which it specifically agreed that Covington could sue 3M in the future on unrelated matters.

Evidently, 3M is now saying that Covington was representing 3M in active matters - although unrelated - at the time Covington agreed to represent Minnesota against 3M.  Covington is saying it was not representing 3M at the time.  So this is a matter of fact that will need to be determined.  In other words, the court will have to determine if Covington was in fact representing 3M in any active matters at the time. Also, the court will have to examine the waiver signed by 3M and determine it is is valid and whether it applies to the facts of the case. 

Assuming the waiver is not dispositive, if it is true that the chronology of events was what 3M claims it to be (that the law firm was representing 3M in an active matter, then the state asked the law firm to take on a new case against 3M, then the law firm dropped 3M, then the law firm took on the representation of the state and sued 3M...), I have to say that sounds a lot like a hot potato case to me, but it will depend on the chronology of events.  If, as Covington argues it had completed the representation of 3M long before it agreed to represent the state of Minnesota, there is no basis for 3M's claim.

Another thing that is interesting here is that the hot potato doctrine is usually used in support of a motion to disqualify a firm in an ongoing case.  Here, 3M tried to get Covington disqualified in the case it filed on behalf of the state of Minnesota seventeen months after that case had started.  That long delay in filing the motion is problematic but the motion has not been decided. Obviously, it will be interesting to see what happens with that motion.   (After the motion was argued, 3M filed a motion to recuse the judge and apparently the case is now before a different judge).  But whatever the case may be, the interesting thing I was referring to is that in this instance 3M has filed a claim for damages, asking for compensatory damages and for a refund of fees paid to the firm over a period of years.
 
Covington & Burling has filed a motion to dismiss the case, in which the firm alleges that the lawsuit filed by 3M is an effort by 3M to deprive the State of Minnesota of its chosen counsel, and to obstruct the litigation of the underlying case.  However, the motion does not address the merits of the claim raised by 3M. It is based on an argument of lack of jurisdiction.  As to the merits of the claim Covington simply states that "[t]he claims against Covington are completely without merit, which Covington will demonstrate at the appropriate time."

For more information and other links on the case go to the ABA Journal and Professor Jonathan Turley's blog.  Also, here is an older article on the case from Reuters which has a lot more information and links (including a link to the waiver mentioned above). 

ABA Journal's Annual Blawg 100 - Vote Today!

The ABA Journal is now accepting nominations for its 100 best legal blogs ("Blawg 100") list. If you've enjoyed reading my blog, please consider voting for it here by September 7.

Nominate your favorite Legal Ethics article for Zacharias Prize

Submissions and nominations of articles are now being accepted for the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. The committee will select from among articles in the field of Professional Responsibility with a publication date of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu

The deadline for submissions and nominations is September 1, 2012.

Thanks to the Legal Profession blog for the information.

Court considers changes to rules regarding representation of detainees at Guantanamo -- UPDATED

Last Friday, the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. Reportedly, lawyers for detainees argued they are concerned that the federal government is moving to "hamstring" the rights of detainees at the Guantanamo Bay detention center.  According the reports, Chief Judge Royce Lamberth expressed skepticism about the new restrictions, which in some cases require a lawyer to sign a "memorandum of understanding" (MOU) to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. A copy of the MOU is available here.  For more (and more links) on this story go the the Jurist and the Blog of the Legal Times.

UPDATE (8/20):  There is another article on the subject in the SCotUS blog.

Do prosecutors have too much power?

Prosecutorial discretion is an important part of the criminal justice system.  For the system to work, prosecutors must have some level of discretion on how to do their jobs.  But, all power can be abused, and, as the old saying goes, with power comes responsibility.  I have discussed the debate over whether suggesting or agreeing to untraditional punishment is a valid use of discretion or abuse of power. (See here and here, for example).

The issue is now back in the news.  Using a recent case in which a U.S. district judge in Denver rejected a plea bargain because the defendant had agreed to waive his right to appeal, The New York Times has published a debate on whether the judge’s concern "is a sign that plea bargains have gotten out of control and in the process given prosecutors too much power" and asking "[w]hen one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?"  Go here to read the five short opinion pieces on the issue written by former prosecutors, judges and academics.

More on the controversy over Stephen Glass' request for admission to the bar - UPDATED

Almost a year ago I wrote about the controversy over the request for admission to the bar by Stephen Glass, a former journalist who was exposed for having falsified many of the stories he wrote for important national magazines over the years - including some he wrote while attending law school.  See my original comment on the case here.  The case is now before the California Supreme Court.

For an argument in favor of admission go here. For arguments against admission go here and here.

The Washington Post has more on the story here.  Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case.  The article was later turned into a film of the same name.

Ex-Judges, Prosecutors Join Fight Over Prosecutorial Misconduct

The Blog of the Legal Times is reporting that more than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct taking a position in the case against the Justice Department.  The Wall Street Journal law blog has more information here.

The case presents an interesting question:  does a prosecutor act unethically (or illegally) if he or she charges a defendant with a crime out of vindictiveness, malice or spite, but under circumstances that can support an argument of probable cause for the charge. The U.S. Court of Appeals for the 11th Circuit ruled last August that prosecutors can’t be sanctioned for “subjective ill-will,” if they have an objectively reasonable basis for bringing charges.

Can Prosecutors Use a Defendant's Pre-Arrest Silence as Evidence of Guilt?

Can prosecutors use a defendant's pre-arrest silence as evidence of guilt?  Circuit courts are split on this issue as explained in this post in the blog Circuit Splits.   

LA Times article on whether undocumented immigrant should be allowed to practice law

A few days ago I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (see here).  Here is the latest - in the Los Angeles Times.

One more link to the new amendments to Model Rules

Here is a link to a "red-line" version of all the amended ABA Model Rules.

Text of the recently approved amendments to the Model Rules

Here are links to the text of the approved amendments:

Rule 1.6

Rules 1.18 and 7.3, and 7.1, 7.2 and 5.5

Rules 1.1, 5.3 and 5.5

Rule on Practice Pending Admission and Comment to Rule 5.5

Rule for Admission by Motion

Rule 1.6 and Rule 1.17

Comment paragraph [3] to rule 4.4 was also amended as follows:

[3] Some lawyers may choose to return a document or DELETE electronically stored information unread, for example, when the lawyer learns before receiving it the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or DELETE electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.


Thanks to Andrew Perlman for the links.

Illinois appellate court finds failure to communicate plea offer supports claim of ineffective assistance of counsel

A couple of months ago, the Illinois appellate court found that an attorney's failure to communicate a plea offer can be the basis of a claim of ineffective assistance of counsel.  Seems obvious to me.  The case is called People v Trujillo and it is available here.

ABA approves changes to the Model Rules

Professor Andrew Perlman, Chief Reporter of the ABA Commission on Ethics 20/20, is reporting (at the Legal Ethics Forum) that this afternoon the ABA House of Delegates approved numerous changes to the Model Rules of Professional Conduct and related ABA policies, adopting all six resolutions proposed by the Commission.  A brief two page summary of the changes can be found here, and you can find the specific amendments that the ABA adopted along with the accompanying reports here.  (Resolutions 105A and 105F in the preceding link underwent minor changes after they were posted.  Clean versions of those Resolutions should be available within the next few days.) 

Professor Perlman is also reporting that the six resolutions adopted today reflect the bulk of the Commission's proposals, though the Commission will continue to study several remaining issues before the Commission completes its work in February 2013.  Those issues relate to virtual law practice, choice of law problems associated with conflicts of interest and nonlawyer ownership, and domestic practice authority for inbound foreign lawyers.  (The Commission's continued consideration of the choice of law problems associated with nonlawyer ownership was the subject of a remarkably spirited debate today in the ABA House of Delegates.)

Debate continues as to whether undocumented immigrant should be allowed to practice law; Dept. of Justice says no

Back in May (and later in June), I posted links to the debate in California as to whether an illegal immigrant should be allowed to practice law (see here and here.)  After the State Bar of California argued that an illegal immigrant should be eligible to practice law, the court asked the Obama administration to submit written arguments n the issue.  The Department of Justice has now complied taking the position that illegal immigrants should not be allowed to practice law.  For more information on the story go to the JURIST, the Legal Ethics Forum, The Wall Street Journal law blog, the Mercury News, the San Francisco Chronicle and Reuters. 

Illinois State Bar Association supports ban on non-lawyer ownership of firms

The Illinois State Bar Association Board of Governors has passed a resolution reaffirming the ABA policy – adopted in 2000 – that law firms should not be owned by non-lawyers and that legal fees should not be shared with non-lawyers. Proposals that would change this policy have been circulated in connection with the work of the ABA’s Commission on Ethics 20/20.  Go here for more on the story.

Court finds state violated attorney's constitutional rights

In an important opinion on first amendment rights of lawyers, the United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  The case is called Berry v. Schmitt and it is available here.

The case is important because it discusses the fine line between the authority of the state to regulate attorney speech and the individual attorney's right to express his opinion about judges and the court system.  For a number of reasons, attorneys have less freedom of speech than other professionals - there are rules that limit what can be said about on going cases for example - but just as there is a limit to what attorney's can say, there has to be a limit to the power of the state to regulate speech.

For a good discussion of the ruling in Berry go here, here and here.

Podcast on the proposals to amend the ABA Model Rules

Here is a podcast of a program discussing the proposals to amend the Model Rules.

Another story on sanctions for conduct outside the practice of law: attorney disbarred for lying to get financial aid for daughter

Earlier today I posted a story to remind everyone of one of the first lessons I want my students to learn: that  disciplinary authorities can, and often do, discipline attorneys for conduct outside the practice of law.  Here is another one in which the lawyer gets the highest sanction.

This story is actually an update on a story I wrote about back in September of 2011.  Back then, an Illinois Hearing Board recommended disbarment for an attorney who lied to his daughter's school so that she could get financial aid for which she did not qualify. He submitted financial aid applications which included false representations and fraudulently altered documents for three separate academic years. Even though the conduct was not within the practice of law and even though the attorney had no record of prior discipline, the Board found the conduct was so dishonest that the attorney should be disbarred.  You can read that opinion here.

Now comes the update:   the Illinois Review Board has affirmed and agreed with the recommendation of disbarment.  The case is called In the Matter of Golden and the most recent opinion can be found  here.

Minnesota Supreme Court holds defendant is entitled to due process in the process of waiving right to counsel

This would seem to be obvious but here is a new case from the Minnesota Supreme Court holding that a defendant is entitled to (and in this particular case was denied) appropriate due process protections in the process of waiving the right to counsel.  The case is called Minnesota v. Krause.  For more on the story go to the Legal Profession blog.

Sanctions for conduct outside the practice of law

There is nothing particularly new in this story, but I like to remind readers from time to time that a lawyer can be sanctioned for conduct outside the practice of law.  In this new case, a lawyer in Illinois was sanctioned because he got into a fight with another person over the fact that the other person hit the lawyer's house with a golf ball.  The lawyer's property is alongside a golf course and apparently he got angry when a golfer hit a ball that bounced off the house and into his yard.  I play golf and I have to tell you that this happens all the time (balls going into people's properties, not the fighting over it).  Anyone who buys a house along a golf course assumes this risk, which is why even though I play golf I would never buy a house on a golf course.  For more on the story go to the Legal Profession blog.

Sixth Circuit enters circuit split on ineffective assitance of counsel

Last week the Sixth Circuit joined a circuit split over whether an attorney's failure to file a notice of appeal despite receiving explicit instruction to do so from their client constitutes ineffective assistance of counsel. The case, Campbell v. United States, is available here.  For more on the story go to Circuit Splits.

Who should be in charge of disciplining Department of Justice lawyers?

I have criticized the Department of Justice's actions to discipline its attorneys as a joke (here and here).  And, as I said in one of those comments, I am not alone in my criticism.  Here is a story in the blog Main Justice about the new group within the Department of Justice-- the Professional Misconduct Review Unit -- that determines disciplinary sanctions within the of Department of Justice.

Thanks to the Legal Ethics Forum for the link to this story:

Alabama State Disciplinary Commission rules attorneys can't participate in Groupon and other similar services

Contrary to opinions from several other state bars that have addressed this subject, the Alabama State Disciplinary Commission has issued an opinion concluding that a lawyer's use of websites like Groupon to sell legal services violates the ethics rule against sharing legal fees with nonlawyers, as well as the ethics rule requiring all unearned fees to be placed into a trust account and may violate rules on conflicts of interest, competence, diligence, and communication, the commission warned.  The opinion (no. RO 2012-01) is available here.

ABA seeks comments on draft re proposed changes to Model Rule 1.7 (Conflicts of interest)

The ABA Commission on Ethics 20/20 has released a Revised Draft Proposal on Model Rule 1.7: Choice of Rule Agreements for Conflicts of Interest.  Also, go here for the Cover Memo.  Please e-mail your comments by August 15, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org. 

Choice of Laws and Concurrent Conflicts

Assume a firm is asked to represent a client in a jurisdiction against another current client of the firm.  Then assume that this would be allowed under the rules of that jurisdiction but not under the rules of the jurisdiction where the other current client is represented.  Which rules govern?  Should the rules allow a firm to represent an interest adverse to a current client in a different jurisdiction absent client consent?

Here is a comment posted in the Legal Ethics Forum on this question:

The New York office of Law Firm represents Company A on a transactional matter involving parties and commitments in New York and London.  While that matter is pending, Company B (in London) wants to retain a lawyer in the London office of Law Firm to handle a London-based arbitration against Company A.  Assume the arbitration is completely unrelated to the work that the New York office of Law Firm is handling for Company A.

Now consider that the ethics rules in England permit law firms to be adverse to existing clients in unrelated matters.  In other words, under the Rules applicable in England, Law Firm would have no conflict of interest if it represents Company B in the arbitration.  In contrast, the Model Rules (and the New York Rules) do not permit lawyers to be adverse to current clients in unrelated matters.  Thus, Law Firm would have a conflict under the New York Rules.  So does Law Firm have a conflict of interest if it represents Company B?

A review of Rule 8.5 (Choice of Law) yields no clear answer.  For matters pending before a tribunal, Rule 8.5 instructs us to apply the rules of the jurisdiction where the tribunal sits (for the arbitration, that would be England).  But on the other hand, Rule 8.5 strongly implies that the New York Rules should govern the Law Firm's representation of Client A in the transational matter.

The ABA Commission on Ethics 20/20 has just circulated a new draft of a possible proposed amendment to Rule 1.7 that would help to address this choice of law problem.  It would allow, subject to several limitations, lawyers and clients to agree that their relationship will be governed by a particular jurisdiction’s rules of professional conduct relating to conflicts of interest.  For example, given that Law Firm's representation of Company A has a nexus to England, Company A and Law Firm could agree at the outset of the engagement that any future conflicts will be resolved under the Rules in England.  This agreement would be a kind of advance waiver similar to what is already permitted under Rule 1.7, Comment [22].  The idea is that such agreements could address the issue more clearly than is possible under Rule 8.5.

The Commission's draft proposal and report on this topic can be found here.  The cover memo is here. Comments should be submitted to Natalia.vera@americanbar.org by August 15th.  If the Commission decides to pursue this proposal, it would be presented to the ABA House of Delegates in February 2013.

ABA Commission asks for comments on Rule 5.5

The ABA Commission on Ethics 20/20 recently released a paper that asks whether Model Rule 5.5 should be revised to offer more guidance on the question of whether a lawyer may provide legal services on a temporary basis in this jurisdiction where the lawyer is not admitted.  For a discussion of the issues go to the Legal Ethics Forum and to My Shingle.com here. and here.

More reports on the slow death of the billable hour (which continue to be exaggerated)

I have reported before on the claims that the billable hour is dead or dying, always adding my opinion that reports of this death have been greatly exaggerated.  For my previous coverage on this subject see here, here, here and here.  You can also use the search function on the right side panel to look for posts on "flat fees" which discuss how the confusion on how to regulate the use of flat fees in some jurisdictions has eliminated their usefulness as alternatives to hourly fees.

Many of the sources of information cited in those older links come from the Wall Street Journal, which is why interestingly, today the WSJ law blog is finally accepting my view in a short article (available here) in which it states that "[d]espite all the hoopla about hourly billing going the way of the Edsel, law firms and their corporate clients have been much slower to adopt alternative billing arrangements than many had predicted..."

West Virginia decides not to file charges against judge for outburst

Yesterday I posted a note about the video showing a judge losing his temper in court (here) and a link to an article highly critical of the judge.  Today, Prof. Jonathan Turley is reporting that the West Virginia Supreme Court has announced that no charges will be filed against the judge in the case at least in part because "the judge is embarrassed and certainly contrite about his outburst."  Prof. Turley then argues that this "leaves some confusion over what it would take to get a charge out of the high court."  He also argues that "I have no doubt that [the judge] is embarrassed after becoming an Internet sensation. However, the video reveals conduct that is shocking and raises serious questions about Watkins’ suitability as a judge."  You can read Prof. Turley's latest comment on the case here.  The ABA Journal has more on the story here.

Video: How not to conduct a hearing

Yesterday, the ABA Journal posted a copy of a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  The judge was complete out of control because, according to him, the husband in the case had posted a story about the judge (which included a photo of the judge's house) on a website.  Since the hearing, the husband has filed a complaint against the judge before the Judicial Investigation Commission.  It will be interesting to see what is decided.

Assuming the accusation made by the judge is true, I think he had reason to be upset, but that does not excuse his behavior.

Professor Jonathan Turley has published a short comment on the story here in which he concludes that "[t]he ethics charge has obvious merit given the judge’s personal interest and anger — not to mention his loss of composure and demeanor. Regardless of the merits of the allegations, [the judge] was no longer a disinterested or neutral party."  You should read the readers' comments too.
 

How not to practice law: if you are a judge, go ahead and preside over a criminal hearing in a case in which you are the victim

Once again let's add another incredible but true story to our long list of things you should NOT do if you want to continue to practice law.  As usual, this list involves conduct that is so basic you'd think anyone would know what they are doing is improper.  Nothing complicated here.  It would be funny, if it weren't so serious.... 

So here is today's entry:  a judge is the victim of a crime and then finds himself presiding over the hearing to set bond for the person accused of that crime.  Apparently it did not occur to the judge that it would be a good idea to let a different judge take over... 

Interestingly, the judge just got a reprimand, maybe because, after all, he allowed the defendant to be released without bond. The actual letter of reprimand is available here. The Legal Profession blog has more here.

Oregon Supreme Court imposes discipline but refuses to explain why

Here is a link to a strange opinion by the Oregon Supreme Court in which the Court imposes an 18 month suspension.  What makes the opinion strange in my view is the fact that the Court explicitly refuses to explain its reasoning.  It simply says that  "We . . . conclude that an 18-month suspension is the appropriate sanction. An explanation of the extensive facts related to the four matters underlying this proceeding and of the appropriateness of the sanction would not benefit the bench, bar, or public."

I don't know but it seems to me that a little guidance so that other lawyers can learn from this one's mistakes and misconduct wouldn't hurt....

The case is called In re Goff and it is available here.

Thanks to the Legal Profession blog for the link.

Supreme Court decides a case on possible prosecutorial misconduct

While there are other cases capturing the attention of the public over at the Supreme Court, about two weeks ago, the Court handed down an interesting (and short) opinion on whether, as part of a closing argument, a prosecutor can suggest that the defendant, his attorney, and an expert witness (psychiatrist) colluded to fabricate a defense if the prosecutor subsequently states that it was not unethical for the defense attorney to do so.  In response, the Court found that the prosecutor's statements taken together did not rise to the level of violating the defendant's due process rights. The case is called Parker v. Matthews and it is available here.   The Legal Ethics Forum has more details and a short debate in the comments section (here).  I think the decision is wrong and that the conviction should have been reversed because of the prosecutor's comments. If you search here for "prosecutor's comments" you will find a number of cases in which court's have reversed convictions in similar cases. 

More on the criticism of the prosecutor in Zimmerman case; apparently she does not like to be criticized

I have posted several links to articles and videos in which other have criticized the conduct of the prosecutor in the George Zimmerman case in Florida (see here and here).  Among those critical of her conduct is Harvard Law Professor Alan Dershowitz.  Here is a video of an interview in which he says the prosecutors conduct was unethical.  Here is an article he published on the issue.

Well, apparently the prosecutor did not appreciate his comments and gave Harvard a call in which Dershowitz claims she went on a rant, including threatening to sue Harvard, in response to his comments.  Here is Dershowitz side of the story.  And here is a short debate on it at the Legal Ethics Forum.

I don't know what the prosecutor actually said nor what she claims would be the base for the claim against Harvard, but having heard Dershowitz interview, it seems to me his comments were pure opinion on a matter of public interest which means there is no basis for a defamation claim.  If the prosecutor does not like the criticism maybe she should not put herself in the middle of a public controversy.

Having said that, though, interestingly, in the article in which Dershowitz describes the prosecutor's call to Harvard he does make a statement about her conduct that sounds like a factual (as opposed to an opinion statement).  He says that she "willfully omitted" relevant information from the affidavit used to charge the defendant.  That statement, which I did not hear him make in the TV interview, could be argued to be a statement of fact about illegal conduct on her part, which, if untrue, could be used as a basis for defamation.  The problem is that, again, the determination of the whether the statement is "true" is based on a difference of opinion as to what the law requires in terms of support for an affidavit in support of an indictment.

How not to practice law: if you are a judge, tell your clerks to decide your cases for you while you are on vacation

Professor Jonathan Turley is reporting today that an Associate Circuit Judge in Missouri is under investigation for allegedly allowing her clerks to handle litigation matters as she vacationed in China last year. Go here for the story.

UPDATE (1/6/13):   The Commission on Retirement, Removal and Discipline recommended the judge be removed from office and the Missouri Supreme Court will now review the case.

State Bar of California supports illegal immigrant seeking bar admission

Last month I posted links to the debate in California as to whether an illegal immigrant should be allowed to practice law (see here).  The issue has not yet decided but the State Bar of California has filed its position in the case arguing that an illegal immigrant who passes the bar exam and demonstrates good moral character should be eligible to practice law. The court has also asked state Attorney General Kamala Harris, the Obama administration and other interested parties to submit written arguments in Garcia's case. It has not yet scheduled a hearing. Go here for more on the story.

Washington Supreme Court Adopts Standards for Indigent Defense

The Legal Ethics Forum is reporting that  the Supreme Court of Washington has adopted new standards for indigent defense.  Go here for the details.

Ohio opinion finds secretly recording a conversation is not unethical

In  a recent advisory opinion the Supreme Court of Ohio Board of  Commissioners on Grievances & Discipline has found that a legal but secret recording of a conversation by a lawyer is not inherently unethical. The opinion overrules an older opinion that had concluded the opposite.  You can read the opinion here.  The Legal Profession blog has more information here.

Comment on outsourcing proposal

Here is a link to a short comment on the issue of outsourcing of legal services and the ABA's 20/20 Commission's paper and proposal on the subject.

ABA Commission on Ethics 20/20 is seeking comments on a newly released Issues Paper

The ABA Commission on Ethics 20/20 is seeking comments on a newly released Issues Paper entitled "Issues Paper Concerning Model Rule of Professional Conduct 5.5 and the Limits of Virtual Presence in a Jurisdiction."  The Commission’s Working Group on Conflicts of Interest, Uniformity and Choice of Law developed this paper. The Commission has taken no position regarding the issues raised or questions posed therein. Your comments will assist the Commission in its consideration of these issues.  Please e-mail your responses by July 31, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org. Comments and submissions may be posted to the Commission’s website.

Op-ed on right to effective assistance of counsel at the plea bargaining stage

In a recent Op-ed piece in the ABA Journal, Erwin Chemerinsky (dean of the Univ of California - Irvine law school) writes that "it is important to not lose sight of two [Supreme Court] cases that are likely to have a dramatic effect on lawyers and judges. In Missouri v. Frye and Lefler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage. Because about 95 percent of all criminal convictions are gained via guilty pleas, these cases will have a significant effect on the practice of law and also likely will lead to a large number of challenges by individuals seeking to have their pleas overturned."  You can read the full article here.


Thanks to the Legal Ethics Forum for the link.

How not to practice law: lie about your assets, don't file tax returns

Continuing our on going list of simple rules on how NOT to practice law, here are two quick ones:

1.  Claim you don't own any jewelry in your bankruptcy application when you are wearing a Rolex.  This earned a three month suspension for this lawyer.

2.  Don't pay your taxes, particularly if you are a former attorney for the IRS and now in private tax law practice (see here).

NY Court finds that wrongfully imprisoned client cannot collect noneconomic damages in malpractice action

About a month ago, the New York Appellate Division, Fourth Department, issued a very short opinion reaffirming the view that a plaintiff cannot recover non-pecuniary damages in a legal malpractice action.  According to the court, New York courts have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to non-pecuniary damages arising out of representation in civil proceedings.  Here, the plaintiff argued the case was different because his claim involved a malpractice on the part of a criminal defense lawyer.  The plaintiff argued that, based upon the type of egregious harm most likely to be suffered by a defendant who is the victim of malpractice in a criminal action -- the loss of liberty attendant to a period of incarceration -- harm that is non-pecuniary in nature.

Thus, assuming the statement about the state of the law in legal malpractice in civil cases is correct, a decision in favor of the plaintiff in this case would have meant that plaintiffs suing criminal defense lawyers for malpractice would have the right to recover for a certain category of damages that plaintiffs suing for malpractice in civil cases wouldn't. 

The court did not agree with the plaintiff and held that plaintiffs in malpractice actions are not entitled to anything but pecuniary damages. 

The court concluded that "[a]llowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions."

I have not researched the question to see what is the prevailing view on this in other jurisdictions, but I do not find this reasoning convincing. I understand the concern about a chilling effect, and the desire to provide incentives for attorneys to help indigent defendants.  But I don't understand the need to limit the possible recovery of a plaintiff that has the right to recovery.

The burden of proof in any malpractice case is high and in criminal cases it is even higher since the former criminal defendant has to show actual innocence (in most jurisdictions including NY - something the court gets wrong in the opinion, by the way).  This means the likelihood that a plaintiff would be successful in a malpractice case of this sort is low, and if the case is such that this is possible it probably involves clear negligence on the part of the lawyer.  Why deny recovery to a deserving plaintiff who has clearly suffered an injury caused by a negligent lawyer?

The case is called Dombrowski v. Bulson and the court's opinion can be found here.

More on the Dept of Justice action regarding prosecutors' misconduct

A few days ago I criticized the Dept of Justice's investigation that concluded certain prosecutors did not act intentionally after an independent investigator had found clear and intentional misconduct.  I called the whole thing "a joke."  Evidently, I am not alone in my criticism.  Today, Prof. Jonathan Turley has published a comment in which he agrees with my position, although he did not use the same language.  Being more eloquent than I, he simply said the DoJ "offered rhetorical punishment as a substitute for true punishment."  Like I said, "a joke."

You should read Prof. Turley's full comment here, but allow me to quote the beginning so you get the idea:

The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others. The slightest discrepancy in testimony or omission in reporting can bring a criminal charge from the DOJ. The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. 

Meanwhile, the Legal Ethics Forum is reporting that the firm that represented the defendant in the case in which the prosecutors engaged in the misconduct, not surprisingly, also disapproved of the DoJ's action and issued the following statement:

Today the Department of Justice demonstrated conclusively that it is not capable of disciplining its prosecutors. Apparently, prosecutors can violate the Constitution, deny the defendant exculpatory evidence demonstrating innocence, and introduce perjured testimony without any fear that they will be punished. Prosecutors orchestrated a miscarriage of justice in Senator Stevens’ case that caused the Attorney General of the United States to order the case dismissed. Trial Judge Emmet Sullivan declared that the misconduct was the worst he had encountered in 25 years on the bench. The misconduct caused a jury to render an illegal verdict, which in turn resulted in the loss of Senator Stevens’ re-election bid. And, the balance of power shifted in the United States Senate. The punishment imposed is laughable. It is pathetic. No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report.

Update on the prosecutorial misconduct report regarding the Ted Stevens case: prosecutors' office finds no intent after independent investigation found intent; prosecutors suspended without pay...

Long time readers of this blog will remember I have been following the story about prosecutorial misconduct in the Ted Stevens case and that I have posted numerous comments and links on it.  To access those, type "Stevens" in the "search this blog" box on the right side panel.

Here is the latest, as reported in the Wall Street Journal law blog:  "At the request of the chairmen of the House and Senate judiciary committees, the Justice Department turned over its internal report on the botched prosecution of the late Sen. Ted Stevens. The department publicly released [a] summary of the findings by its Office of Professional Responsibly [available here].  A separate court-ordered investigation concluded that prosecutors concealed evidence from Mr. Stevens’s defense team, but it stopped short of a criminal contempt finding."

I criticized this report here.  I argued that it was inconceivable that a report could find clear and intentional misconduct and not recommend sanctions.  (That report found the prosecutors acted intentionally to violate ethics rules).

Contrary to that criminal investigation, however, the DoJ's own report did not find that the prosecutors acted intentionally and for that reason concludes that the prosecutors should be sanctioned through forced time off without pay.

I think that is way too lenient.  An independent investigation found the prosecutors intentionally violated the rules but the prosecutors' own office found they did not.  What a joke.

I think that prosecutorial misconduct is a tremendous problem in this country and until the authorities start getting serious about it by imposing real sanctions it will continue to be a problem.  Obviously, there are exceptions, as in the Duke lacrosse team case, which resulted in the disbarment of the prosecutor, but these are rare.

The New York Times has more on the story here. The Blog of the Legal Times has more here. 

Using the prosecution of George Zimmerman for a PR course?

Obviously, there has been a lot of media coverage on the prosecution of George Zimmerman.  A lot of it has centered on the possibly unethical conduct of the District Attorney.  See here, here and here.  Given all the criticism and the material available already, John Steele of the Legal Ethics Forum has prepared a list of interesting questions, hypos, and issues that could be used to discuss important material in a Professional Responsibility class.  For the full list and a short discussion go here.

Conviction reversed because judge was working for the prosecutor at the time

The Legal Profession blog is reporting on a case in which the Minnesota Supreme Court reversed a criminal conviction because the presiding trial judge had been retained by the prosecuting attorney as a expert witness in an unrelated civil case.  The defendant asked the judge to recuse himself, but the judge denied the motion. 

Should an illegal immigrant - undocumented worker be admitted to the California bar?

At How Appealing, Howard Bashman rounds up articles about a pending application to the State Bar of California:

"Court to review request of illegal immigrant to practice law; A paralegal who was brought to the United States as a young child has been certified by the State Bar of California, raising broader questions about licensing illegal immigrants in other professions": Maura Dolan has this article today in The Los Angeles Times. In today's edition of The San Francisco Chronicle, Bob Egelko reports that "Court to decide if illegal immigrant can practice law."  And Howard Mintz of The San Jose Mercury News reports that "California Supreme Court to decide if illegal immigrant can practice law."

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

Federal bill proposed to codify prosecutors' duties

Two months ago, Sen. Lisa Murkowski (R-Alaska) introduced a bill called the Fairness in Disclosure of Evidence Act of 2012 (S. 2197), which is a bill to “require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for other purposes.” The Act begins by defining the term “covered information” to mean all “information, data,documents, evidence, or objects that may reasonably appear to be favorable to the defendant in a criminal prosecution brought by the United States with respect to (A) the determination of guilt; (B) any preliminary matter before the court before which the criminal prosecution is pending; or (C) the sentence to be imposed.”  For a comment on the bill go here.




Thanks to Roy Simon for the update.

Washington State Bar Association issues opinion on metadata

A few days ago, I posted a summary of a new opinion on an attorney's obligation when receiving a document by mistake (see here). A more complex problem arises when the document is received in electronic format (as a Word or Pdf file sent by email, for example).  In such a case, the document may contain important meta data, often easily accessible.  As explained in the ABA Center for Professional Responsibility website,

Metadata is loosely defined as "data about data." More specifically, the term refers to the embedded stratum of data in electronics file that may include such information as who authored a document, when it was created, what software was used, any comments embedded within the content, and even a record of changes made to the document.

While metadata is often harmless, it can potentially include sensitive, confidential, or privileged information. As such, it presents a serious concern for attorneys charged with maintaining confidentiality -- both their own and their clients. Professional responsibility committees at several bar associations around the country have weighed in on attorneys' ethical responsibilities regarding metadata, but there is no clear consensus on the major metadata issues. To help track current views on metadata and ethics, we've assembled the following chart.

A number of jurisdictions have issued opinions on the duties of an attorney who receives documents with metadata.  The Washington State Bar Association recently issued the most recent opinion on the subject.  You can read the full text of the opinion, which is very short, here.  Go here for a summary of the opinions on this subject from other jurisdictions. I also recently mentioned (here) an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.

According to the recent WSBA opinion, lawyers may review readily accessible metadata that an opposing counsel unwittingly transmits in an electronic document but must not use software to extract such metadata from a “scrubbed” document.  It places the duty to prevent the disclosure of data on the sender and only imposes on the recipient a duty to notify the sender that the document contains readily accessible metadata.  The recipient is not ethically obligated to stop reading the document or to return the document, but cannot attempt to dig up metadata that the sender affirmatively tried to remove. Such conduct would violate the rules regarding respect for third parties' rights and conduct prejudicial to justice.

How not to practice law: don't take depositions seriously

An attorney in Miami removed from a case by a U.S. District Judge for scheduling depositions at a Dunkin’ Donut shop, appearing in shorts and tee-shirts, drawing pictures of male genitalia to mock opposing counsel, and playing video games during depositions.  Go here for the full story.

Do attorneys have a duty to be up to date in the latest "technology"?

The Legal Talk Network has a podcast on whether there is a duty to know about modern technology here.

Another one of those "worst lawyer commercials" post

Here is yet another compilation of bad lawyer commercials. 

Suggestions on how to make sure the mandatory pro bono program in NY is a success

A couple of weeks ago I reported that starting in 2013, candidates to admission in New York state will be required to show that they have performed at least 50 hours of law-related pro bono service as a requirement for admission to the New York state bar.  See here.  Then I reported on the fact that not everyone liked the idea. See here.

Now there's more.  Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has written an article with suggestions on how to make sure New York's program works effectively.  You can read the full article here.

Nevada Supreme Court holds prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea

In a new case addressing the issue for the first time, the Nevada Supreme Court has held that a prosecutor has a duty to disclose exculpatory evidence before negotiating guilty plea.  The case is called Nevada v. Huebler and it is available here and here. 

Given Brady v. Maryland and the rules of professional conduct related to the special responsibilities of prosecutors you would think this is self evident.  But it isnt.  Some courts have held that a defendant can't challenge the validity of a guilty plea by arguing a Brady violation.  In Huebler, the court explains that "[t]his issue arises because Brady evolved from the due-process guarantee of a fair trial, . . . and therefore has been described as a trial right, . . .  but when a defendant pleads guilty, he waives several constitutional guarantees, including the due-process right to a fair trial, and any errors that occurred before entry of the plea."

After discussing the conflicting case law, the court agreed with other courts that have held that not requiring prosecutors to disclose exculpatory evidence before negotiating plea agreements could tempt prosecutors to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas.  In the end, the court concluded that

"[w]hile the value of impeachment information may depend on innumerable variables that primarily come into play at trial and therefore arguably make it less than critical information in entering a guilty plea, the same cannot be said of exculpatory information, which is special not just in relation to the fairness of a trial but also in relation to whether a guilty plea is valid and accurate.  For this reason, the due-process calculus also weighs in favor of the added safeguard of requiring the State to disclose material exculpatory information before the defendant enters a guilty plea.

It is not every day that an innocent person accused of a crime pleads guilty, but a right to exculpatory information before entering a guilty plea diminishes the possibility that innocent persons accused of crimes will plead guilty."  

Ethics 20/20 Commission has filed its final resolutions

Thanks to Andrew Perlman, of the Legal Ethics Forum and the 20/20 Commission for the following announcement and links:

Yesterday, the ABA Commission on Ethics 20/20 filed final versions of its resolutions and reports with the ABA House of Delegates.  The House will vote on the resolutions at the ABA's Annual Meeting this August.

You can find the Commission's overarching summary and report here.  If you're only interested in a description of what the Commission is proposing and why, this document should do the trick.

If you want more details, the Commission's resolutions and accompanying reports can be found at the following links:

Technology and Confidentiality (proposals affecting Model Rules 1.0, 1.1, 1.4, 1.6, and 4.4)

Technology and Client Development (proposals affecting Model Rules 1.18, 7.1, 7.2, 7.3, and 5.5)

Admission by Motion (proposals affecting the Model Rule on Admission by Motion)

Outsourcing (proposals affecting Model Rules 1.1, 5.3, and 5.5) 

Practice Pending Admission (proposal to create a new Model Rule and a proposal affecting Model Rule 5.5)

Conflicts Detection (proposal affecting Model Rules 1.6 and 1.17)

Judge Removed For Pursuing Unwanted Romance With Attorney

The Legal Profession Blog has a report on a case in which the Delaware Supreme Court has ordered the removal of a family court judge for attempting "to establish an inappropriately close social relationship with a young female attorney" who regularly appeared before him.

Article on the demise of mega firm Dewey & LeBoeuf

The law firm of Dewey & LeBoeuf was created in 2007 in the largest merger of law firms in history. During the past few weeks reports have been coming in that it is falling apart.  Last week its partners were told “to seek out alternative opportunities.” The firm is falling apart because of financial problems.   Here is a link to a short article in the New York Times that claims the firm's troubles "are only an extreme version of those facing many other firms."

Two reports on consequences for conduct in violation of Rule 3.3: one criminal prosecution of criminal defense lawyer and one disbarment

In a rare criminal prosecution of a defense lawyer, a prosecutor today at trial accused a veteran attorney in Washington of devising a scheme to use fake evidence and perjured testimony to clear a client in a drug case.  The Blog of the Legal Times has the story here.

Meanwhile in an unrelated story, the Legal Profession Blog is reporting on the disbarment of a lawyer who admitted to using false evidence in a case.

Judge dismisses drug case because of prosecutor's misconduct

Back in February, I posted a story about a judge who, after being asked by the Justice Department, refused to delete from an opinion the name of a district attorney who engaged in misconduct.  At the time I said that I was happy to see a rare example of a judge doing something to encourage proper conduct by district attorneys.

Today I am happy to report the latest chapter in this case:  the  drug-smuggling case has now been dismissed because of the prosecutor's misconduct.  The judge reportedly stated she wants to ensure that the U.S. Attorney's Office takes the misbehavior seriously.  Good for her!

You can read the full story here.

Thanks to the Legal Ethics Forum for the update.

Perspective on the American criminal justice system

Here is a link to an article by a public defender on his perspective about the criminal justice system.  Here is a key paragraph:

I have arrived at the view that the criminal-justice system is broken in ways that I never imagined as a teenage intern sitting in Judge Jones’ courtroom. While my focus is on defending individual clients, I believe that we must profoundly change our approach to criminal justice in the country. Otherwise, my task will remain Sisyphean, and the rhetoric in our public discourse about America’s commitment to the ideals of freedom and justice, so ubiquitous in this election year, will continue to mock and humiliate my clients.

Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.” 

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.

Illinois Court of Appeals on burden of proof needed to support argument that crime-fraud exception defeats claim of privilege

The Illinois Court of Appeals has issued an opinion in a case called People v. Radojcic on the level of proof necessary to support a claim that the crime-fraud exception to the attorney-client privilege applies.  You can read the full opinion here.

In this case, the state wanted to have the defendant's attorney testify and the defendant objected arguing the communication was privileged.   The state presented testimony to support its contention that the defendant communicated with the attorney to advance his attempts to commit crimes or fraud and the court held that that testimony was sufficient to meet its burden.

Specifically, the court stated that

"[t]o defeat the privilege, the party seeking disclosure must show "that a prudent person has a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof." . . . Often, only the communication itself can show that the privilege does not apply. . . . In some such cases, when other evidence fails to show that the client has lost the privilege, the trial court may hear evidence in camera to determine whether the privilege applies. Before hearing evidence in camera, the judge should require the party seeking disclosure to show facts that would support a reasonable belief "that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies."

Based on this analysis, the court concluded that

"[b]efore the trial court excludes testimony from an attorney because of attorney-client privilege, the court must consider whether the party seeking to use the testimony has made a sufficient showing to give the court reason to question witnesses in camera to determine whether the attorney-client privilege applied to the communications between the attorney and the client. We find that the State presented testimony that would give a reasonable person cause to suspect that the client here used his communications with his attorney to advance his attempts to commit crimes or fraud. Accordingly, we hold that attorney-client privilege does not preclude testimony from the attorney here, and we reverse, and remand for a trial at which the State may call the attorney as a witness."

Court of Appeals holds John Yoo is immune from liability for his role in justifying torture

The Court of Appeals for the Ninth Circuit has just issued an opinion holding that John Yoo is immune from a lawsuit by a U.S. citizen who said he was tortured while detained in a military brig.  Yoo, as I am sure you remember, was one of the lawyers who designed the arguments used by the Bush administration to support the legality of its use of torture.  The opinion of the court is available here.

 For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.

A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical.  There has been a lot of discussion (and there is a lot of literature about it out there) already.

For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show.  Here are chapters 4, 5, 6 and 7 :

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

NY City Bar Ass'n new opinion on what to do when you receive documents by mistake

The Legal Quandary is reporting today that the New York City Bar Association has issued an opinion (available here) attempting to clarify what lawyers must and must not do when they receive material sent in error by an opponent.  I have not had a chance to read the opinion itself so I am just going to repeat what the LQ reported:

Part of the opinion is common sense – you . . . must promptly notify the sender, under Rule 4.4(b) of the New York Rules of Professional Conduct. The duty holds regardless of whether the communication is electronic or hard-copy, and applies no matter who sends the material. 

The tricky part? Now lawyers are tempted with the discretion to decide for themselves how to answer the next question: ”Now that I have it, and I told the other side about it, is it  it is ethically permissible to use this material?” Here the Opinion eases away from prior bans against such use.

Now, “depending on the facts and circumstances” use of the material may be appropriate, or at least allowed. Of course, you are free to engage your noblest qualities and decide that such use would be unfair, and decline to look. . . . Need you raise the issue with your client, who might be angry with you for passing up the opportunity to learn some secrets? You’re on your own there, but the comments to the Opinion suggest you may want to do that too.

So, green light right? Not so fast. The Opinion cautions that . . . “a lawyer who reads or continues to read a document that contains privileged or confidential information may be subject to court-imposed sanctions, including disqualification and evidence-preclusion”.

And my students complain that sometimes they don't get a straight answer in class!  Ha!  Welcome to the real world.