The "meet and greet" practice of law?

The "a public defender blog" has posted a story on the reality of practice of criminal defense in some courts.  In fact, this is (obviously) not an isolated incident -remember the story that the Miami public defender's office was rejecting cases because they did not have time to manage them?   In any case, the public defender story is about a case in which the defendant was assigned a public defender who met with the client for the first time the morning of his trial, which was going to be the attorney's first criminal trial in seven years. The attorney had about 12 hours to prepare for trial.  A public defender argues that a conviction under those circumstances violates the constitution.  And he has some strong words for the lawyer who claimed he was ready for the trial under those circumstances. You can read the full post here.

Lawyers Swarm to Ghost Blogging, But is it Ethical?

The Legal Talk Network has a 25 minute podcast on the issue of whether ghost blogging is ethical here (or here).

New case on the limits of proper argument

One of the topics I cover in my class is the notion of limits of proper argument.  I assign a series of cases that discuss whether it is proper for an attorney to cite the Bible in support of an argument when addressing the jury, or to ask the jury to "send a message" by reaching a certain verdict.  Now I have a new case to discuss the issue.  The Legal Profession Blog is reporting on a recent case called State of Montana v. Ugalde in which a dissenting judge would have reversed a conviction because of the prosecutor's closing argument. The case involved a prosecution related to injuries to an infant. At the end of the trial, the prosecutor began her closing argument with a first-person narrative from the perspective of the infant, relating the State's view of what happened as though the victim was testifying on her own behalf. During rebuttal, the prosecutor then told jurors that the infant was "speaking to you" and asked the jurors to "tell the victim that you heard him and that you find the defendant guilty. I agree with the dissenting judge. His view is consistent with the other cases on the subject. Aside from being a little creepy, the prosecutor's approach was improper. Essentially, she testified for the victim who was not subject to cross examination, she played to the emotions of the jury, and she asked the jurors to "send a message." Here is what the judge wrote:

. . . I believe the prosecutor's channeling the infant-victim in closing arguments denied Ugalde her constitutional right to a fair trial. The channeling was neither brief nor harmless. It was calculated to play on the emotions and sympathy of the jury. I.N. spoke to the jurors through Pierce, describing the assault, the surgeries, how his life is no longer the same, that he no longer can tell his mother he loved her, and that he can only speak three words. Pierce asserted that “[I.N.] was the only witness, besides the Defendant, to tell you what happened to him on June 11th of 2008 .” Pierce asked the jurors to tell I.N. that they heard him and to tell Ugalde that they know what happened that day. The evidence presented at trial concerning the impact upon the eight-month-old victim and the cause of his injuries was overwhelming. But that does not justify our overlooking a prosecutor's improper closing argument that was calculated to appeal to the jury's emotions, passion, and sympathy. This tactic undermined the fundamental fairness of the trial. I therefore would reverse for plain error and remand for a new trial.

Extra!: U.S. Attorney agrees to vacate conviction after thrashing by Ninth Circuit for prosecutor's misconduct

Last Saturday I posted a video in which the Court of Appeals for the Ninth Circuit severely criticized the conduct of a district attorney who based an argument on facts not in evidence.  At the end of the oral argument (by a different prosecutor) one of the judges suggested that the prosecutor go back home and watch the tape of the argument with the prosecutor in question and simply confess to the conduct and stop trying to justify it or explain it or claim it was harmless error.

Well, apparently they did just that, as Seeking Justice reports, "no doubt to avoid a scathing decision from the Court."

Here’s the government’s four paragraph motion to vacate the conviction and remand the case. Seeking Justice summarizes it as simply saying "We’ve all reviewed it, our prosecutor was wrong, and we will use the video to teach prosecutors the bounds of proper closing argument."

That is a good thing, I guess, and hopefully they will take it seriously in the future. 

More comments on prosecutorial misconduct: why do some courts protect the anonymity of prosecutors?

Here is a link to a recent article in the Huffington Post that discusses the fact that the names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct.

There's no formal rule precluding the publication of a prosecutor's name in an opinion.  Apparently, the practice is rooted in what some call "professional courtesy."  But I don't see why a prosecutor should deserve professional courtesy if they are found to have engaged in misconduct, particularly when other lawyers are not granted the same courtesy in published disciplinary decisions.   I just don't think there's a legitimate argument as to why prosecutors should get more protection from allegations of wrongdoing than other attorneys.

Thanks to the Legal Ethics Forum for the link to the article.

Book (p)review: Essential Qualities of The Professional Lawyer

Back in 2008 I wrote an article for a symposium on professionalism in which I tried to reduce the notion of professionalism to some basic elements and values.  It was a short article and I did not have the chance to expand on my ideas too much.  Plus, I wrote the article in Spanish...

But, don't worry!  If you are interested in this topic, The ABA Center for Professional Responsibility has published a new book called Essential Qualities of the Professional Lawyer, which takes on the same task I wrote about, and more.  Since I have not read all the essays yet, I can't really write a review of the book. So think of this as a pre-review (or is that a preview?).

The book is a collection of essays by many different authors on many different subjects, all based on the same underlying theme:  that there are some core tools that lawyers need to become authentic and successful professionals.  The topics covered include professionalism values, civility, proper use of computers and technology, merging professional and personal values, gender and bias issues, lawyering skills and professional conduct.

The essays vary in length and coverage and they are not meant to be read in any specific order.  In fact, I would suggest that you should not read the book from beginning to end as if you were reading a novel.  I would suggest you read a chapter or two, put the book down and come back to it some time later.  Take your time to read and think about the different issues over time.  I look forward to reading it this way.  It may take me a long time to finish, but there is no need to rush it.  I feel I may get more out of it that way.

Vote for innovative ideas at the Innovating Forum

Are you interested in new ideas on how to change and improve our justice system?  If so, take a look at the Innovating Justice Forum  of the Hague Institute for Internationalisation of Law.

One of those ideas comes from my friend and colleague David Wexler and I encourage you to take a look at it.  David's work originated the concept of "therapeutic jurisprudence" (or "TJ") which argues for the need for a new perspective to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.  Here is a short video in which he explains the concept.

Recently, David has been working with a US judge (Michael Jones ) and a Victoria, Australia magistrate (Pauline Spencer) on a new therapeutic jurisprudence project called "Integrating the Healing Approach to the Criminal Law." 

The project has been nominated by the Hague Institute for Internationalisation of Law Innovating Justice forum under the "Innovative Idea" category and you can read about and vote for it here. 

Illinois Supreme Court finds "advanced payment retainers" can't be used in divorce case

Back in 2007, in a case called Dowling v. Chicago Options Associates, the Illinois Supreme Court recognized something it called an “advance payment retainer” which would allow a client to give a lawyer money the client wanted to keep away from the client’s creditors. The idea behind the concept was to protect a client’s ability to pay for legal representation, but as applied in that particular case and as explained by the court, the concept makes no sense and inevitably results in a violation of other rules of professional conduct.

Surprisingly, however, even though it makes little sense, the concept of the advanced payment retainer had not been challenged before the court until this year. This new case (In re Marriage of Earlywine) involved a divorce where the husband asked his lawyer to keep a certain amount of money so that the husband would not have to contribute to pay for the wife’s legal representation as determined by a specific statute. The statute was created to level the playing field in divorce cases by requiring a spouse with access to independent funds to help the other spouse pay for representation.

In Earlywine, the husband did not want to share his funds with his wife who was indigent. In an attempt to prevent her from getting access to the money, the husband gave the money to his attorney as an advanced payment retainer.

The court did not overrule Dowling, however, and simply ruled that the use of an advance payment retainer to protect a client’s funds from the obligation to share under the domestic relations act undermines the purpose of the statute in leveling the playing field which would render the act a nullity. The court found that it was “clear from the attorney-client agreement that the advance payment retainer in this case was set up specifically to circumvent the “leveling of the playing field” rules set forth in the Act. To allow attorney fees to be shielded in this manner would directly undermine the policies set forth above and would strip the statute of its power. If we were to accept [the husband’s] argument, an economically advantaged spouse could obtain an unfair advantage in any dissolution case simply by stockpiling funds in an advance payment retainer held by his or her attorney.” 

This makes sense to me and I think the decision reached the correct result. You can read the full opinion here.  What the court failed to accept, however, is that the same thing could have been said about the conduct of the client in Dowling. Although the court reached the correct result in this case, it should have taken the chance to get rid of the problem it created with its decision in Dowling.

As it is, an advanced payment retainer refers to money that belongs to the attorney, even though it is not actually earned until the work is performed. How it can be earned and not earned at the same time is a mystery. And if it is owned by the attorney, but not earned and thus owed to the client if not used, how can the attorney deposit it in either the general account or the trust account without commingling?

When can a lawyer be sanctioned for criticism of judges?

The Indiana Disciplinary Commission recently recommended a one year suspension without automatic reinstatement for an attorney based on the content of private communications criticizing a judge. The case is now before the state's supreme court which should decide the sanction would be an unconstitutional interference with the attorney's freedom of speech. For more details on the case, go here.

In this case, the commission recommended the sanction for emails that the attorney sent to another attorney criticizing a judge for mishandling a case. Among other things, the attorney stated that that the judge “should be turned in to the disciplinary commission for how he handled this case.”

The commission apparently told the attorney he could forgo the possible disciplinary proceeding if he apologized for the comment but the attorney refused and decided to fight the charge instead. I applaud him for this decision because the commission is clearly acting unconstitutionally here. The attorney has the right to express his opinion about the judge and if that statement is what the commission is basing its position on, it does not have any valid basis for imposing sanctions. I hope the Indiana Supreme Court does the right thing here and sends the commission (and the judge) packing.

Ironically, apparently the commission has argued as an aggravating factor that the attorney "believes he is superior to the courts and the law.” Yet, it is the commission which apparently believes its power is superior to the attorney's first amendment protected right to express his opinion.

This is not a case where the attorney made assertions of fact about the judge (like the recently reported case where it was alleged that an attorney argued a judge was a pedophile).  Here the attorney expressed his opinion about the competence of the judge.  This type of expression is protected speech.

Governor signs bill that would allow undocumented alien to be admitted to the bar in California

I previously reported that the California legislature approved a bill that would allow undocumented aliens to join the California bar (see here and go here for more on the case that prompted the bill). Now comes news that Governor Jerry Brown has signed the bill. Go to At the Lectern for more information. Thanks to the Legal Ethics Forum for the link.

 

Ninth Circuit Court of Appeals on how to handle prosecutorial misconduct

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. Often courts do not do enough to discourage it or to impose sanctions for it. Luckily, there is one court that is doing its part.  This week I saw two different stories on prosecutorial misconduct, both from the Court of Appeals for the Ninth Circuit.

The first one involved an oral argument (you can see the video appears below).  Here the court was reviewing a case in which the court denied the defendant a chance to reply to an argument by the DA in which the DA made arguments based on facts not in evidence.  The oral argument on behalf of the government is worth watching.  The judges who participated were clearly bothered by the prosecutor's conduct and it seems pretty clear the conviction will be reversed because of it.  The implication is that the prosecutor purposely decided to wait until rebuttal to make a comment based on facts not in evidence because the defendant would not be able to reply to the comment. The court then denied the defendant three minutes for a rebuttal to the prosecutor's statement giving rise to the question on appeal.

The government's argument begins at the 26 minute mark. The argument starts poorly for the government and gets worse.  At the 44 minute mark, one of the judges reduces the issue clearly to the bottom line: trials should be fair and prosecutorial misconduct can't be tolerated. Interestingly, he then goes on to talk about some reasons why there is too much prosecutorial misconduct: too much prosecutorial discretion. Now, that's a different issue we could talk about another day!  Take a look at the specific comment starting at minute 44 of the video (or here).

UPDATE:  A few days later the US Attorneys Office filed a motion to vacate the conviction.  Go here for the update.

Keep reading below for news on the second story I mentioned.



The second story I saw this week about of the Ninth Circuit was this:  "In another sign that the Ninth Circuit is leading the way in holding prosecutors to their Constitutional obligations while insuring the Constitutional rights of defendants, a panel earlier this month, in Dow v. Virga, No. 11-17678 (Sept. 5 2013 9th Cir.), granted habeas relief where the California prosecutor, Deputy District Attorney Jennifer Ow of San Mateo County, knowingly elicited and then failed to correct false testimon..."  For more commentary see Seeking Justice.  For a copy of the opinion go here.

Even more on the reversed convictions for prosecutorial misconduct

The Legal Ethics Forum has some more links here.

More on the egregious conduct of the prosecutors in New Orleans

Yesterday I posted some links on the recent reversal of a conviction due to prosecutorial misconduct.  Today Seeking Justice has posted a long comment on the case here.

More convictions reversed because of prosecutorial misconduct

Describing the conduct of Justice Department lawyers as “grotesque,” U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up. The 129-page order identifies “unprecedented events and acts” of misconduct by prosecutors.  Jonathan Turley has a comment on the case here.

How not to practice law: insult the opposition

In class we discuss some cases on the question of whether an attorney can or should disciplined for expressing offensive opinions or for making racist comments.  Among other things, we draw distinctions between expression and conduct and between offensive-but legal conduct and conduct that violates valid regulation on discrimination.  The discussion is interesting because eventually the question becomes whether the rules should be different for lawyers simply because they are lawyers.  And, as you probably know, the result of some of the cases is that the answer is yes.

Interestingly, the Legal Profession blog is reporting on a new case that adds to the debate.  In this case, available here, the Indiana Supreme Court has imposed a 30-day suspension on an attorney for writing a letter to opposing counsel in a divorce action that contained the following statement:  "Your client doesn't understand what laws and court orders are. Probably because she's an illegal alien to begin with." The court rejected the suggestion that the comment was legitimate advocacy and concluded that it had no purpose other than to embarrass or burden the opposing party.

I don't think that the conduct in this case, although offensive, would be sufficient to impose sanctions under the Model Rules.  Indiana's rule 8.4(g) clearly holds that it constitutes misconduct to "[e]ngag[e] in conduct, in a professional capacity, manifesting bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors, and this conduct was not legitimate advocacy."  This language is taken from part of the comment of the Model Rule which suggests such conduct can be considered to be a violation of MR 8.4 but only if the conduct is prejudicial to the administration of justice.

Should sexist comments be a disciplinary offense? Should they be tolerated either as a “First Amendment right”? For a discussion on the subject, see Roberta M. Ikemi and Carol A. Sobel, Should Sexist Comments be a Disciplinary Offense?, 81 A.B.A. J. 40 (August, 1995). Ikemi argues that “[i]f we truly believe in equal access to justice, the courts should have the power to discipline lawyers for gender-biased or racist conduct” because “[w]hen directed at other lawyers, this behavior is evidence of an unwarranted opinion about who is deemed to be a worthy opponent. Left unchecked, the conduct has the effect of intimidation and denies the value of the attorney’s contribution to the legal system. In short, gender-biased and racist conduct denies the principle of equal access to the justice system and its courts, and keeps it from becoming a reality by silencing those who would implement it.” 

In contrast, Sobel suggests that “the fact of a problem with gender bias by attorneys in the judicial system does not excuse any action to discipline attorneys for “objectionable” speech.” She argues that the “utterance of biased expression should not be enough to invoke the sanctions of the legal system because one important part of our commitment to expressive rights is that no person’s speech will be punished simply because it is found to be “offensive” to another person or portion of the community.”  

California legislature passes bill permitting non-citizens to become California lawyers

Last year I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (in California).  The California Supreme Court recently heard oral arguments, and I posted a link to the video of the oral argument and more articles here.

Now the JDJournal is reporting that the California Supreme Court rejected the candidate's argument holding that the federal laws that prohibited professional licenses to illegal immigrants also allowed state legislatures to carve out exemptions.  (I have not yet seen the opinion on this.)

But the  story does not end there.  In a somewhat surprising move, the California Legislature has approved a bill to allow law licenses to illegal immigrants.  Go to JDJ for more information.  (Thanks to the Legal Ethics Forum for the link.)

Another comment on prosecutorial misconduct

Just a few minutes ago I posted a note about a recent case from the Fourth Circuit on prosecutorial misconduct.  Here is another comment on the same case.  The case is U.S. v. Bartko.  As this comment states, the court's opinion was notable not only for its lengthy reprimand of the practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about it.

Yet another example of why there is so much prosecutorial misconduct

I hate to sound like a broken record, but here I go again:  prosecutors will continue to break the rules unless courts begin to take the problem seriously.  Here is the latest example of the problem.  As recently posted in Seeking Justice "until there are serious consequences, including reversal of convictions, disbarment, and sanctions against the prosecutors, we will all continue to suffer from blatant disregard of the law with impunity by the very people who are sworn and empowered to protect us."

Ethics Forum essay writing competition

The Legal Ethics Forum is sponsoring an essay writing competition with cash prizes.  Go here for details. 

More on the issue of violating conflidentiality when replying to an on line review

A couple of days ago I posted a note on a recent complaint filed alleging an attorney disclosed confidential information when replying to a negative on line review.  Today, the Legal Ethics Forum picked up the story and added a couple of interesting questions:  whether the "self-defense" exception in Rule 1.6(b)(5) would ever authorize a lawyer to respond to a negative on-line review of the lawyer's services and whether a lawyer who wants to exercise control over his or her on-line reputation could have as part of the retainer agreement a provision where the client agrees not to post any reviews of the lawyer's services (if the client did post something, the attorney could then have a breach of contract action).  Take a look at the comments section of the Forum where you will find links to relevant materials on these issues.

My own opinion on the first question is that there is nothing that prevents a lawyer from replying to a review but the lawyer has to be careful not to disclose more information than necessary.  For other comments on this issue, go here. In most cases, the attorney can defend his or her reputation without the need to disclose information that is not public already.  The problem in the Illinois case was not that the attorney replied to the review, but that he disclosed more information than was necessary.

On how to handle a problem client

Professional Liability Matters (blog) has a short comment with practical advice on how to handle a problem client here.

Violating the duty of confidentiality when replying to an online review

The Legal Profession Blog is reporting that the Illinois Administrator has filed a complaint alleging that an attorney violated her duty of confidentiality by responding to a client's unfavorable review of her services.  There is nothing inherently wrong in replying to an online review, but just like anywhere else, you have to be careful about what you say.  The attorney in this case allegedly disclosed more information that was necessary (in fact, more information that was relevant) and thus is now facing the complaint for disclosing confidential information. 

Oral argument on whether undocumented immigrant should be admitted to practice

Last year I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (in California).  See here, here, here and here.  The case was finally heard by the Supreme Court of California and here is a link to the oral argument.  Also, take a look at the comments on the argument (and some predictions) at the Legal Ethics Forum.  There are more links there too.

Teacher gets disciplined for threatening to kill people

Here is the story. Could a lawyer be disciplined for similar conduct? 

Debate about intra-firm privilege continues

Last month I posted a few links to other blogs and an op-ed piece on the issue of intra-firm privilege.  See here.  The Legal Ethics Forum now has more links here.

Newspaper and TV reports on the Florida public defender I mentioned earlier

Here is a report on the elected public defender in Florida I mentioned in my previous post.  Also here is a clip from Action News:

Elected state public defender?

I must confess I did not know that in some jurisdictions the Public Defender is an elected position.  Wow!  I find that hard to believe.  The dangers to the system of justice in that idea seem apparent to me and now seem to be quite clear in Florida.  I just found out by reading a comment in A Public Defender (blog) on the situation in Florida.  You should take a look at it here.

Comment on NY opinion on "specialties" and LinkedIn

I have more than once complained about the lack of common sense when it comes to rules related to advertising lawyers' "specialties."  (See here, for example.)  Adding to this issue, the New York State Bar Association recently issued an ethics opinion on lawyer use LinkedIn’s “specialty” feature.  See Ethics Opinion (EO) 972.

The opinion concludes that listing practice areas under LinkedIn's “Specialties” section would constitute a claim that a lawyer or firm is a specialist in a particular field of law and thus, absent certification would violate New York Rule of Professional Conduct 7.4(a).  One problem with the opinion, however, is that as of March 2012, LinkedIn deleted the specialties option.

But the opinion raises a number of other issues that merit discussing.  First, again, I think it is nonsense to argue that it is improper for an attorney to advertise he or she specializes in a certain area of the law.  See my previous posts on this for more on that.

Second, it is worth asking whether states are fighting a losing battle when attempting to regulate the use of social media which changes so quickly.  And, if so, it is worth asking what is the better approach.

Carolyn Elefant has a short comment on this subject in her blog MyShingle.com here.  Her position is simple:  Lawyers’ ethical obligations when using social media may be summarized with a simple mandate:  "No deception."  Yet, she argues, "rather than invoke the simple litmus test of whether a communication is deceptive to a reasonable viewer to evaluate lawyer advertising, disciplinary committees feel compelled to spill thousands of words analyzing the ethics of each and every feature of each and every iteration of each and every social media platform."  

And her conclusion:  "I’m not suggesting that the bars relax regulation of lawyers using social media. But when it comes to the ethics of social media, one small graphic combined with a little bit of common sense is worth not just 1000 words but thousands of dollars in savings as well."

Read her full comment here.

Should a lawyer be disciplined for his conduct as a client of another lawyer?

Just a few days ago, the Missouri Supreme Court issued an opinion that raises an interesting question.  Here is the story, in a nutshell:  suppose attorney A hires attorney B to help him file a series of claims.  Now assume that the claims are frivolous.  Clearly Attorney B would be subject to discipline and sanctions under both rules of professional conduct and rules of procedure - assuming Attorney B knew the claims were frivolous.  But how about Attorney A.  He was not practicing law; he was a client. 

The court found the lawyer should be disciplined and, in fact, imposed a pretty severe sanction for the conduct.  The case is called In re Lawrence J Hess and it is available here.  (Thanks to the Legal Profession blog for the link.).  One judge wrote a concurring opinion arguing that the rule on frivolous litigation should only apply to the lawyer who acted as a lawyer not to the one acting as a client.  One judge wrote a dissenting opinion finding the conduct did not violate the rules at all.

The concurring opinion makes an interesting point.  She argues that the conduct violated rule 8.4 (conduct prejudicial to the administration of justice), but that the rule related to filing frivolous claims should apply only to the lawyer acting as an advocate.  It is this lawyer who has the duty to exercise independent professional judgment to decide whether the claim is frivolous and who has the duty to tell the client it should not be filed.

This is a close call for me.  I understand the logic of the argument in the concurring opinion, but it is not inconsistent with other rules to say that they apply to lawyers even when they are not in the practice of law.   In the end, given that the sanction would not change regardless of whether it is determined that the attorney violated one or two rules, the issue may just be academic. 

Huffington Post article about lack of accountability for prosecutorial misconduct

The Huffington Post has published a story on an issue I have written about many times: the lack of accountability for prosecutorial misconduct. The article is available here. In addition, here is an interview with the author or the article. Take a look at about the 5 minute mark, where the interviewer literally laughs at the notion of "self regulation" of the profession.

Article on issues related to social media and the practice of law

Here is a link to a recent article on issues related to social media and the practice of law.  Among other things, it comments on an ethics opinion by the New York County Bar Ethics Committee I wrote about back in July (see here). 

Thanks to the Legal Ethics Forum for the link.

You can now get the posts via RSS

For those of you who used to rely on Google Reader, or those of you who prefer to get notices of the posts as they are posted throughout the day, you can now subscribe using Feedly (for PC browsers and mobile devices) or Newsify (for mobile devices).  I am sure there are other options, but those are the ones I use to follow the blogs I read.  They both work well.  Simply add the blog's address (http://bernabepr.blogspot.com/) to your subscriptions and you should be able to follow the blog.  However, I do suggest you keep the e-mail notice system just in case...

Illinois adopts a "civil Gideon" pilot program

The Chicago Daily Law Bulletin is reporting today that Gov. Patrick J. Quinn has signed legislation that will make Illinois the second state in the nation to offer court-based legal counsel in some civil cases. The measure goes into effect immediately although the program is only in a pilot stage. For now, the program is technically in its pilot phase, so court-provided civil attorneys will be limited to one circuit court in each of the five appellate districts.

North Dakota Supreme Court opinion on non refundable "minimum fees"

I have written many times before on the concept of flat fees and whether they can be non refundable. See here, here and here, for example. In one of those posts I summarized what appeared to be the state of the law (at least in one jurisdiction) this way: "A flat fee can be non-refundable as long as there is nothing to refund; but if there is something to refund, it must be, unless there is a good reason not to. Easy." Sounds confusing? It is confusing! I understand the concern behind some of the decisions but the decisions have not been very clear.

Now comes the North Dakota Supreme Court with a new decision on the subject in a case called In re Hoffman, N.D., No. 20120290, 7/23/13. It explains some things well but for others we are still left with same of the problems we have seen before. Let's take it step by step.

In this case, the lawyer charged a $30,000 non-refundable “minimum fee” for his work in a criminal matter. After working on the case for about 26 billable hours he was discharged and then refused to refund any part of the fee. Bar counsel argued that the fee was “unreasonable”, that the lawyer violated the rules by putting the fees into an operating account rather than a client's trust account, and that he violated the rules by not providing a refund.

The court disagreed with the first two allegations but agreed with the last one.

The court found that the fee was not per se unreasonable because the jurisdiction “has not yet adopted a rule barring the use of non-refundable fee agreements.”

As to the second allegation, the court also held the law in the jurisdiction does not prevent a lawyer from negotiating that advance fees will be the lawyer's property upon payment.

So far so good. But then, citing sources from different jurisdictions, the court agrees that “Even if advance fees are by agreement not being held in trust for a client, they may still be subject to refund if later determined not to have been unearned.”

This is what I don't understand. If it is agreed that the fee is earned upon payment, then how can it be considered to be unearned? (If on the other hand, was was agreed was that an unearned fee will be deposited in the lawyer's operating account, the court is saying that a lawyer and client can agree to allow the lawyer to commingle funds.)

So, in sum, the court says the fee is not unreasonable and the lawyer is free to negotiate that it is earned, only that the client can later claim it wasn't earned. That does not make sense to me.

The court is concerned with the fact that an attorney could end up keeping a huge fee for little work and that a client may be tied to an attorney they would rather fire. As the court says "the retainer in circumstances of termination of representation may represent a windfall".

All that is fine, but if the court wants the fee to be refundable, then it should hold that fees can't be non refundable. Period. Instead, what the court ended up saying is that fees can be non refundable and earned, unless the client wants a refund or thinks they were not earned. And that is confusing, to say the least.

More criticism of the DC Bar Counsel decision to recommend an admonition for prosecutor with history of repeated violations

I recently posted a comment critical of a decision from Washington DC in which the Office of Bar Counsel recommended only an admonition for a federal prosecutor with a “history of repeated, blatant Brady violations” (as determined by a judge's findings) and who was found to have made false statements to a judge.   See here.  Seeking Justice was also critical of the decision and the Legal Profession blog has a number of posts critical of the DC disciplinary system. Now Jonathan Turley has added his voice to the criticism.  His comments starts as follows:  "It has long been maintained by defense counsel that the Justice Department not only protected unethical prosecutors but has a culture encouraging unethical conduct in litigation. This problem is magnified by the tendency of courts and bar committees to look the other way in the face of violations or to confine sanctions to admonitions or verbal criticism"  You can read the full comment here.

Wisconsin Supreme Court finds ethical obligation to disclose exculpatory evidence is not broader than the obligation under Brady v. Maryland

The Wisconsin Supreme Court recently held in a disciplinary proceeding (In re Riek) that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland.  

The accepted interpretation of the ABA Model Rules, and an ABA Formal Opinion, take the view that the ethical obligation is broader.  See  ABA Formal Ethics Op. 09-454.  But not all jurisdictions agree.  For example, the Ohio Supreme Court rejected the ABA's position in Disciplinary Counsel v. Kellogg-Martin, 923 N.E.2d 125 (Ohio 2010), while North Dakota has embraced it (In re Feland, 820 N.W.2d 672 (N.D. 2012)).  Louisiana and Colorado have also ruled on the subject before the ABA's Opinion in In re Jordan, 913 So. 2d 775 (La. 2005 and In re Attorney C, 47 P.3d 1167 (Colo. 2002).

Also, the professional responsibility rules in at least two jurisdictions state, or can be fairly understood to say, that a prosecutors' duty is not broader under the rules than under Brady.  See D.C. R. Prof'l Conduct 3.8 cmt. 1 (2012) and  N.C. R. Prof'l Conduct 3.8(d) (2012).

Most jurisdictions, however, have yet to decide the issue directly.  It will be interesting to see the case law that develops.

Thanks to the ABA/BNA Laywers' Manual on Professional Conduct for the update and link.

Should the US Supreme Court adopt an ethics code?

A group of Democratic lawmakers has reintroduced a bill that would require Supreme Court justices to comply with the same ethics rules that apply to other federal judges.  For more details (and more links) go to the ABA Journal, the Blog of Legal Times and the Huffington Post.

Here is a link to an op-ed at Politico in praise of the bill.  For some critical comments go to the Legal Ethics Forum.

NY Times article on character and fitness inquiries re mental health

Here is a link to a recent New York Times article on whether it is proper for character and fitness committees to ask about candidates' mental health history.

Thanks to Jourdan Levy for the link!

Washington DC Office of Bar Counsel again fails to impose meaningful discipline

A few days ago, I commented on a case in Washington DC where the Office of Bar Counsel's recommendation of censure for prosecutorial misconduct was rejected by the Disciplinary Board which recommended a stiffer sentence.  I have read elsewhere that DC has a reputation for not imposing harsh discipline and now there is news of another case that supports this view.

The new case, reported in the Blog of the Legal Times, involves a federal prosecutor with a “history of repeated, blatant Brady violations” (as determined by a judge's findings) and who was found to have made false statements to a judge.  Yet, despite the finding of the history of violations and the most recent incident, the Office of Bar Counsel recommended only a formal admonition.

Needless to say, as I have argued so many times before, this is not the way to discourage prosecutorial misconduct.

Seeking Justice has a comment on the case here.

Death Row inmate's lawyers move to disqualify entire Attorney General's office from representing the state in appeal

Last month, the lawyers for New Hampshire’s only inmate on death row filed a motion to disqualify the entire Attorney General’s office from handling the state's reply to his appeal after the office hired a key member of inmate's defense team.  They argued that former public defender Lisa Wolford, who worked full time on the case in 2009, took at least one confidential document with her when she joined the Attorney General’s office last summer as an appellate lawyer.  If this allegation is proven and the AG's office did not have a screen established before Ms.  Wolford joined the office, it is possible the state will have to find someone else to represent its position.  But, I have not seen any reports on the outcome of the motion.  The Boston Globe has the story here.

Thanks to George Conk for the link.

Washington DC's notion of moral turpitude apparently does not include holding a minor as a sex slave

If you are a long time reader of this blog, you know that I have asked before for an explanation as to the notion of moral turpitude in Washington DC.  Today I read about a new particularly disturbing case that raises the question again.  In the past, I commented on a case where it was determined that the conduct of a lawyer in lying, cheating and stealing money was not considered to be moral turpitude because it was not "dishonesty with intent for personal gain."  See here.  I could not understand how it could not be, but that was that.  Then there was the case where it was found that tampering with a witness was considered moral turpitude per se which resulted in disbarment (here).  OK.  I have not problem with disbarring an attorney that engages in that conduct, but is that really moral turpitude?

Today, however, the Legal Profession blog published a note about a case in which an attorney who was convicted of felony traveling for the purpose of engaging in sex with a minor was found not have engaged in conduct involving moral turpitude. According to an account of the case, the attorney had made a 12-year-old boy his sex slave for six years....he will spend the next 15 years behind bars. And this is not "moral turpitude" per se?

The Legal Profession blog reports that the disciplinary board's lawyer members (except one recusal and one not participating) concluded that the conduct did not constitute moral turpitude per se, and therefore that there should be a hearing to determine if it was moral turpitude under the circumstances.

What a waste of resources!  Someone please explain to me under what circumstances it can possibly be thought that traveling abroad to engage in sex with a minor, bringing the minor back to the US and then holding him as a sex slave could NOT be conduct involving moral turpitude.

The Board should have held that this was moral turpitude per se and disbarred the attorney.  Period.

The only non lawyer members of the Board dissented.  Good for them.

The Legal Profession blog has the full story here.

Iowa Supreme Court recognizes claim for emotional distress caused by attorney's malpractice

I have never understood why it is so difficult for courts to recognize claims for emotional distress in cases where the plaintiff does not suffer physical injuries. Is it really that difficult to believe that someone can suffer emotional distress due to someone's conduct absent a physical injury?   Assume an attorney's malpractice causes a client to lose his house, or custody of his children or to be separated from his children for years.  Is it really that difficult to believe that the attorney's negligence can cause emotional distress?

I don't think so.  As long as we recognize that emotional distress is a distinct type of injury that can result from negligent conduct, it is difficult to argue that a plaintiff should not have the right to bring a claim as long as he or she can support the elements of the cause of action.

Following this type of reasoning, the Iowa Supreme Court recently held that a couple from Ecuador may sue their attorney for emotional distress because his advice caused them to be separated from their children and grandchildren for a decade.  It’s the first time the state’s high court has allowed an attorney to be sued for emotional distress and punitive damages in a malpractice case.  Go here for more on the story.

Conviction reversed because of prosecutorial misconduct

The New Jersey Supreme Court has reversed a conviction because a state prosecutor's office violated its post-indictment discovery obligations when its investigator destroyed his notes of a two-hour pre-interview of a defendant.

Thanks to the Legal Profession blog for the link.

DC gets tough on prosecutors for misconduct

I have complained repeatedly on this blog about how regulatory agencies and courts do not take prosecutorial misconduct seriously enough; about how prosecutors are rarely disciplined, etc.

Finally, I have a chance to report a case where the exact opposite is true.  The Legal Profession blog is reporting that the District of Columbia Board on Professional Responsibility has recommended a suspension of 30 days of an Assistant United States Attorney who had failed to provide a witness statement to the defense.

The reason the case is noteworthy is that Bar Counsel had recommended a public censure.  The board noted that cases where the board imposes a sanction that exceeds that sought by Bar Counsel "should be the exception, not the norm" but it found this to be such a case because, according to the board, the prosecutor's violation of Rule 3.8(e) was blatant. He failed to disclose exculpatory information that was obviously material. The board also stated that a suspension will serve as a more effective deterrent than the public censure recommended by Bar Counsel and the Hearing Committee and is an appropriate measure of the seriousness of Respondent's misconduct. I think 30 days is still too light, but I am certainly happy to see that the Board rejected the ridiculous recommendation of the hearing committee and bar counsel. The case is in In re Andrew J. Kline, No. 11-BD- 007, and is available at this link.

Is this the beginning of a trend?  It is hard to say, but last year, the Court of Appeals disbarred a former prosecutor for Brady violations. Prior to that, public discipline had never been imposed in the District of Columbia for Brady-type misconduct.

Whatever it is, it is a good example for other jurisdictions to follow.  The Legal Ethics Forum has more on the story (and more links) here.  The Blog of the Legal Times has more (and links) here.

Alaska limits prosecutorial discretion to enter into plea bargaining in some cases

"A Public Defender" is reporting that Alaska has decided to limit prosecutorial discretion to negotiate plea agreements in certain types of cases.  Go here for the details.

Article criticizing decisions that found converstations within a firm regarding possible malpractice are privileged

Last month I reported that the Massachusets Supreme Court recently found that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  See here.  A few days later, Georgia reached the same result.  See here.   The Legal Ethics Forum had a debate  on the issue here and here.  Now, thanks again to the LEF, here is a link to an article by Richard Zitrin (professor at UC-Hastings) criticizing the decisions which he refers to as bad for clients who expect loyalty from the firms they employ.

How not to practice law: ask client to pay for legal services with sex

Here is the most recent addition to our running list of examples of how NOT to practice law. This is one we have seen before and it should be pretty obvious... but it continues to happen. Go here for the full story.

Connecticut Law Tribune editorial on prosecutorial misconduct

I often complain that courts do not take prosecutorial misconduct seriously enough.  To its credit, The Connecticut Law Tribune does.  It recently published an editorial, criticizing all the arms of the criminal justice system for their complicity in repeated instances of prosecutorial misconduct during closing arguments by Connecticut prosecutors.

Thanks to "a public defender blog" for the link. Go here for their comments on the article.

Criticism of District Attorney following Zimmerman trial

Jonathan Turley has posted his opinion on the conduct of the District Attorney in charge of the Zimmerman prosecution.  He states that the DA's office "stands accused of serious allegations of withholding evidence from the defense. I have previously said that I view those allegations as highly credible and worthy of sanctions. She is also facing a whistleblower lawsuit after she fired an IT specialist who revealed that her office was withholding evidence in the Zimmerman case" and concludes that "[a]t a minimum, [the DA's] actions and comments strike me as highly unprofessional." Read the article here.

More on the Zimmerman case

Again, as expected there are more comments on the Zimmerman verdict.  Here are links to some I saw today (with brief quotes to give you an idea of the content of each).  Click on the links to read the full articles:

Zimmerman prosecutors further beclown themselves (Legal Ethics Forum)
("the prosecutors who showed such bad judgment in the Zimmerman matter do it again, just in case you had any doubts. When you bring the wrong charge, try the wrong case, and decisively lose the case, you shouldn't mug for the camera, cya, talk about how well you would have done if the trial had been completely different, mock the acquitted accused for a supposed lack of courage, disparage the defendant for exercising his constitutional rights, etc.")

Angela Corey Fires Whistleblower Who Revealed The Withholding Of Evidence From Zimmerman Defense
("the prosecution team of Angela Corey in the Zimmerman case have been accused of repeated prosecutorial abuse in the withholding of evidence from the defense. ...Corey has been widely criticized for over-charging the case ... and her team was widely criticized for putting on a weak case for prosecution. Now, before [a ruling] on her office’s withholding of evidence, Corey has fired [the person who disclosed it]. His termination before a ruling on the alleged prosecutorial abuse only strengthens his claims as a whistleblower and throws the ethics of Corey and her office in great question.")

Law and Legend: How The Zimmerman Case Was Lost By The Prosecution (Jonathan Turley)
("Criminal cases often make for easy and dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters — discarding those facts that do not fit our narrative. Zimmerman and Martin became proxies in our unresolved national debate over race.")

Can a lawyer advice a client to "clean up" a Facebook page?

There are a lot of stories out there about lawyers looking for evidence in clients' and opponents' Facebook pages, so it is interesting that I saw two stories this week on whether a lawyer can advice a client to delete material from the client's social media sites. One says it is ok, the other one argues it would not be.  At first sight, it appears the stories contradict each other, but maybe they don't.

First, according to an opinion by the New York County bar's ethics committee (New York County Lawyers Ass'n Comm. on Professional Ethics, Op. 745, 7/2/13),attorneys may in some circumstances advise a client to “take down” social media and online postings that could have an adverse effect on the client's position in a civil matter:  "An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages…. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on “private” social media pages, and what may be “taken down” or removed."

The key to this opinion is, of course, "provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence".  In other words, what the opinion apparently says is that if it is OK to do it under the law, it is ethical to advice the client to do it.  Nothing new there.

The question then is, is it OK to do it under the law?  Not according to this story in the Professional Liability Matters blog which concludes that "[o]ne rule that is well established is the requirement that a legal hold be implemented for all relevant materials, including social media content. The failure to abide by this rule could be dire."  (There is a follow up story in the PLM blog here.)

More comments on the Zimmerman verdict

Yesterday I wrote that we would see many comments on the Zimmerman verdict in the next few days.  Here are links to some I saw today:

USA Today column by Jonathan Turley

An imaginary dialogue trying to explain Florida v. Zimmerman to someone who has not had the benefit of a legal education by Stephen Gillers

George Conk at Otherwise

Jury nullification argued by prosecution in Zimmerman case (Legal Ethics Forum)

Day on Torts

Georgia Supreme Court agrees with recent ruling re intra-firm privilege

A few days ago I reported that a new decision from Massachusets recently held that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  Now comes news that the Georgia Supreme Court has issued an opinion reaching the same conclusion.  The Legal Ethics Forum has the story and links here.

Comments on Zimmerman Verdict

I am sure we will see lots of comments on the Zimmerman case in the next few days.  Here is a link to a short comment (with lots of links to more articles, comments and information) at the Legal Ethics Forum.  The main issue it raises is that "[t]he chief prosecutor in the court room was hamstrung by the murder two charge, which required him to stretch facts, pre-emptively put on witnesses who undermined the state's own case, and to spend most of his case trying to create a reasonable doubt about the defense's theory. One wonders what would have happened if the state had simply gone with manslaughter and presented their case with confidence and integrity."

More on the story on perjury by medical expert in personal injury cases in New York

I recently posted a story about a developing story about perjury in New York.  The story continues...    Go here for the latest.

Massachusets Supreme Court recognizes in intra law firm privilege

The Legal Profession blog is reporting (here) on an important new decision from Massachusets on whether confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  The court concluded that they are, provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.  The case is called RFF Family Partnership, LP v. Burns & Levinson LLP.  The Legal Profession blog has more on the story and a link to the case here.  The Legal Ethics Blog also has more here. 

E mail problems seem to have been solved

It seems that the e mail update service is functioning properly again. If you signed up yesterday (Tuesday, 7/10) you should have received an update by email already. If you did, you are all set and you should continue to get the updates regularly. If you didn't get an update this morning, please check to see if you missed the confirmation e mail that went out to you when you entered your email address. You need to follow the instructions in it to complete the process. If all else fails, please go to the blog and try signing up again, wait for the email and hit the link in it. Everything should be up and running without problems now.

 

As usual, you will only get one message in the morning with the posts posted the previous day. If you notice that you have not received updates in more than a week, please go to the blog itself and check if there are new posts you have missed. If so, please let me know there is a problem.

 

Thanks again for your patience and your support for the blog.

 

E-mail problems part II

Thank you to all the readers who have signed up again for e-mail updates. Unfortunately, I did not get an update this morning either so I am still trying to figure out what the problem is. Thank you very much for your patience!

 

New Jersey Supreme Court fails again

I have complained in the past about New Jersey's repeated failures to properly sanction unethical conduct.  See here and here, for example.  Today's example adds to the state's reputation for lax standards.  In this case, the attorney was disbarred in New York in 2011 for commingling and record keeping violations that were deemed not small nor isolated.  The attorney was  later was also disbarred in Colorado, Pennsylvania and in Connecticut.  But when it came to New Jersey, the New Jersey Supreme Court ordered a three-month suspension.  The Legal Profession blog has more here.

Sanctions for lawyers of witness who perjures himself?

Eric Turkewitz continues his coverage of a developing story in New York, where a judge recently found a physician who has made a career testifying for defendants in personal injury cases in New York has been found to have committed perjury.  Go here for the first installment on the story. Go here for the latest.  Should the lawyers who brought the witness to testify be sanctioned?   The judge initially imposed sanctions but then eliminated them. 

The case also involves an attorney surreptitiously obtaining evidence to expose the perjury.  Should that evidence have been turned over as part of discovery?

Problems with e-mail subscriptions

Something happened to the blog yesterday and the e-mail subscriptions function stopped working. I fixed the problem, but unfortunately, if you had an e-mail subscription and prefer to continue to get updates by e-mail, you will need to subscribe again. Please do so by entering your e-mail address in the box on the right hand side panel.  You will have to then follow the prompts to complete the process (typing some random letters and replying to a confirmation email).  It is a three step process but should not take you more than a minute to complete.  I just went through it myself.

I apologize for the inconvenience! If you have any questions or concerns please email me directly.

Witness commits perjury, then blames the judge because judge had told him he had to tell the truth...

Eric Turkewitz continues his coverage of a developing story in New York, where a judge recently found a physician who has made a career testifying for defendants in personal injury cases in New York has been found to have committed perjury.  Go here for the full story.

Book review and discussion of lawyers' roles

JOTWELL has a good book review of W. Bradley Wendel's Lawyers and Fidelity to Law (Princeton University Press, 2010).  I have not read the book, but enjoyed the short review which summarizes the philosophical debate about the justification of the duties of lawyers toward their clients.  As the review explains, "several moral philosophers, and a few lawyers, characterized legal representation as comprising two overarching principles.  The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfill their client’s wishes to the limits of the law. Provided they fulfill these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. . . . Despite some spirited justifications, and more nuanced rejoinders, the balance of debate moved on to the consequences of such a conclusion and the steps that should follow."  

Wendel's book revises the issue of the standard conception of the lawyer’s role.  According to the review, his position is that the message that lawyers are slaves to clients’ wishes is not one that anyone concerned with the integrity of professional values wants to convey, while admitting that the profession's underlying rationale has to be the autonomy of clients.  To reconcile the conflicting views, Wendel argues the proposition that it is not fidelity to clients that is the underlying justification of the lawyer’s role, but fidelity to law itself.

Go here to read the full review.

Court affirms disqualification of Covington & Burling

Last year I posted a few comments about a case in which 3M Corporation sued the law firm Covington and Burling arguing that the law firm violated its duties to the client by operating under a conflict of interest.  See my initial post on the case here.  The lawsuit alleged that the firm had decided to represent the State of Minnesota against 3M in a case that was substantially related to the representation of 3M in another case.  3M also filed to disqualify the firm from representing the state in that case.  I commented on the allegations here and here.  Eventually, the court granted the motion to disqualify and the firm and the state appealed.  That appeal was decided last week when the Court of Appeals affirmed.  You can read the opinion here.  (Thanks to the Legal Ethics Forum for the link).  You can read a comment on the case here.

What to do if attorney discovers child pornography in a computer that belongs to a member of a corporate client

Prof. Monroe Freedman has posted this interesting question at the Legal Ethics Forum:  A lawyer who represents both civil and criminal clients is at the offices of a corporate client he is representing in a civil matter.  While he is there, the lawyer gets permission from a VP of the company to use the VP’s computer  (which belongs to the corporate client) to check the lawyer’s email.  In using the computer, the lawyer inadvertently discovers that it contains pornographic pictures of sexual abuse of children.  The VP is not the lawyer’s client, and the VP has no reason to believe that he is.  The pornography is unrelated to the client’s business.  What should the lawyer do?  Go here for the discussion.

Unbundling legal services: not as easy as it sounds

Last February, I reported that the ABA approved a resolution encouraging lawyers to consider providing unbundled legal services when appropriate.  See here.  According to a report accompanying the resolution, such representation can increase access to legal services. 

I have expressed my doubts about the concept of unbundling of legal services and I am not sure what all the brouhaha is about (see here).  Likewise, here is a comment on why unbundling is not as easy as it sounds.

Canada Supreme Court clarifies rules re conflicts of interests

Some time ago, there was a debate as to whether the ABA Model Rules should be amended to allow for screening in cases of concurrent conflicts of interests if the interests of the clients involved were not related.  That view was (correctly, in my opinion) rejected and the debate has since died down.  The rule, thus, remains that a lawyer may not act for clients with directly adverse legal interests, even in matters that are unrelated. Interestingly, the Canadian Supreme Court recently clarified its position on this subject, making it clear it agrees with the ABA Model Rules approach.  Go here for more on the story.

How not to encourage ethical conduct: Oklahoma Supreme Court holds that the proper sanction for misconduct is what it would have been back when the conduct ocurred

If you follow this blog you know that I have often commented on how courts do not seem to do enough to punish unethical conduct by prosecutors. (Most recently, here.)  With that in mind, I find the reports on a recent decision by the Oklahoma Supreme Court very troubling.

As reported by Prof. Jonathan Turley the court rejected a request from the state bar association to disbar a former assistant district attorney for Oklahoma County for egregious misconduct in two capital cases. Here is a key passage that summarizes the court's conclusion:

Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension. Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though  [it] may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, [the prosecutor's] actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all. 

This is, in short, absurd.  Anyone who knows anything about professional responsibility knows that there has always been a problem with sanctions being inconsistent among and within jurisdictions, particularly when it comes to prosecutors.  Also, anyone paying attention knows prosecutorial misconduct is a huge problem in this country.

The question should never be whether the sanction to be imposed is what would have been imposed back when the conduct was committed.  The question is whether the conduct was unethical.  Period.  It was.  In fact, the court admits it was reprehensible.  To hold as it does provides an excuse for reprehensible conduct - as long as others were engaged in like conduct at the time or as long as the actor can hide it long enough to say it happened back when a lot of people were engaged in it.  Using this logic, today's unethical prosecutors could avoid harsh sanctions in the future since prosecutors today are also not getting the sanctions they deserve.

Once again, I sound like a broken record:  why do we have so much prosecutorial misconduct?  Because courts are unwilling to take it seriously and do something meaningful about it.

Fortunately, not every member of the Oklahoma Supreme Court was willing to go along with the majority's absurd view. Justices Taylor and Watt dissented, stating:

Whether it was “decades ago” or today, no attorney should ever commit the “reprehensible” conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

 You can read Prof. Turley's criticism of the court's opinion here.

For my previous posts on prosecutorial misconduct, go here and scroll down.

Advice against public policy

As everyone knows, it would be unethical for an attorney to assist or advise a client to commit a crime or a fraud.  But did you know it may be unethical to assist the client engage in conduct that a court might consider against public policy?  This is the conclusion of a recent case from Indiana in which the Indiana Supreme Court held lawyers could not assist or advise clients in negotiating away parenting time as a means to elimate the obligation to pay child support.  The court found such notion to be "repugnant and contrary to public policy" and held that attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. The case is Perkinson v. Perkinson and it is available here.

Thanks to the Legal Profession blog for the link.

What to do when a witness lies

Every law school professional responsibility textbook has a section on what to do when a client lies.  We all cover that material, but when we do, we usually use cases that involve the duties of a criminal defense lawyer.  Which is why I think this recent post is a must read for everyone interested in the topic.  The author is a prosecutor in New York and his blog is very good. 

Update on the Zimmerman prosecution

Jonathan Turley has an update here in which he argues that the "prosecutors in the George Zimmerman trial are facing a collapsing case and renewed question over whether Angela Corey succumbed to the political pressure and overcharged the case. The prosecution’s case has thus far been a disaster and many are now questioning whether charges should have been brought at all, let alone charged as second degree murder"

A new frontier for lawyer advertising: "keyword advertising"

The Florida’s State Bar's “Standing Committee on Advertising,” has recently proposed that it is “deceptive and inherently misleading” for one lawyer to buy keyword advertising triggered on another lawyer’s name.  Go here for the story and for an argument supporting the view that the proposed ban is not a good idea.

Yale Law Journal Symposium on Right to Counsel Fifty Years after Gideon v. Wainwright

The Yale Law Journal's final issue of the academic year is a thorough symposium called: "The Gideon Effect - Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright." It is over 600 pages of articles by 25 leading authors. It is available in print and also for Kindle (Amazon) and Nook (Barnes & Noble) devices.

One of the articles is by a friend on mine, Bruce Green, a professor of legal ethics at Fordham University School of Law.  His article is called Gideon's Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?  Here is the abstract:

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer — a right that is fundamental to a fair trial and to avoiding wrongful convictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture?

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture? Go here for a discussion on the issue.

Ethical issues raised by the Zimmerman prosecution

Last year I posted a few comments and many links discussing ethical issues raised by the prosecutor's conduct in the Zimmerman case.  (To see those posts, type Zimmerman in the "search this blog" box on the right side panel and you should get links to six different stories). Now that the case in under way, the Legal Ethics Forum has raised one of the issues again.  Go here to see the debate on whether the prosecutor can justify the charge of murder in the second degree.

Brooklyn DA reality vs reality television

A few weeks ago, CBS debuted a new TV reality series called Brooklyn DA (here).  It promised to be a candid look at the men and women who work as prosecutors in Brooklyn.  It did not go well.  As television goes, the show bombed and is reportedly cancelled (or soon to be cancelled).  More interestingly is the contrast between reality TV and the reality.

While the show attempted to portray the DAs office as the good guys doing the right thing all the time, the real drama is unfolding away from the cameras.  As Jonathan Turley reports

The Brooklyn district attorney Charles J. Hynes is not have a particularly good week. First, Hynes had to fire one of his top people after Gang Bureau head Deanna Rodriguez used racist and anti-gay language. Now he will have to testify about allegations that his office ignores and even promotes prosecutorial misconduct. The testimony will occur in the case of Jabbar Collins, who has filed a civil rights lawsuit against the office of District Attorney Charles J. Hynes after he won his release after 16 years in prison for murder. He claims that his case is only one of an array of cases showing a pattern of egregious abuses and misconduct by Hynes’ office and prosecutors. . . . . Among the abuse was the so-called “hotel custody program” where witnesses were detained against their will and allegedly pressured into false statements. A paralegal detailed how prosecutors used the alleged forced interrogations to get witnesses to support their cases.

 The story also appears in the New York Times (here).  Given the controversy, at least one report wonders if "it might be these upcoming depositions of the DA and his shady Rackets Bureau chief that might really be the reason CBS is bailing on a series that it never should have aired in the first place."  For more criticism of the show, go here.

NY City Bar Association recommends allowing non-lawyers to practice law under certain circumstances

Citing the  “justice gap” that leaves more than 2.3 million low-income New Yorkers each year to navigate the civil justice system on their own, the New York City Bar Association Committee on Professional Responsibility has issued a report recommending that non-lawyers be allowed to practice, with some limitations, as “Courtroom Aides” and “Legal Technicians.”  You can read more about the story here and here (which includes a link to the report itself).

Debate about the Commission 20/20's work

Professor James E. Moliterno (Washington & Lee) has published "Ethics 20/20's Successfully Achieved its Mission: It 'Protected, Preserved, and Maintained'" (Here), in which he comments and criticizes on the efforts of the Commission whose work resulted in the most recent wave of amendments to the Model Rules of Professional Conduct.  Over at the Legal Ethics Forum, the chief reporter for the commission and another member of the commission debate with Moliterno about his article.

What do you think should be the proper sanction for this conduct?

I am curious to see what you think should be the appropriate sanction give the following facts (which are taken from an actual case recently decided in Kentucky).

A client pays an attorney $50 to write a letter.  The lawyer takes the money and tells the client he will get it done and call him back.  The attorney does nothing.  The client tries multiple times to reach the lawyer but the lawyer does not call him back.  The client complains to Bar Counsel.  Bar Counsel calls the lawyer and lawyer says he inadvertently overlooked the matter.  (There is no explanation as to how he inadvertently also failed to call the client back after multiple requests.)  Lawyer promises Bar Counsel that he will do the work and get in touch with client. The lawyer then does nothing, doesn't contact the client and keeps the money.  The client tries to contact the lawyer; the lawyer does not reply.  Bar Counsel calls the lawyer; lawyer does not call back.

Bar Counsel then files a formal complaint and sends it to the lawyer.  The lawyer signs for it when delivered.  Lawyer does not reply to the complaint; does not reply to a second letter reminding him to reply to the complaint.  The complaint was processed and the charges entered.  The attorney was notified, but, again, did not reply or do anything about it.

After all that, a 20 member board found the attorney in violation of at least 4 rules (20 to 0 vote). 

Now, here is the question:  what is the best way to handle this type of conduct?

The Court issued a 30 day suspension.

I understand that, given that the attorney did not participate in the proceeding, we can't determine the reason for his conduct (Is he simply disorganized or is he incompetent?  Is he unfit to practice or just negligent?  Is he disabled in some way?).

I understand that without more information, a stronger sanction may be unfair.  We really can't determine if maybe the attorney should not be allowed to practice...  But what is the alternative?  If nothing is done about this, lawyers could avoid facing severe consequences for their conduct by simply blowing off the process.

If I had been in a position to decide this case I would have imposed a much harsher sanction.  The attorney clearly knew what he was doing was wrong.  He had been told by Bar Counsel.  He committed to correct the initial mistake but decided not to.  He clearly knew a disciplinary process against him was under way.  I would have interpreted his conduct as either so incompetent that it raised doubts as to his ability to practice or as evidence that he simply did not care - did not care about his client, about doing his job, about acting professionally or ethically, and about the process.  Either way, my conclusion would have been that he needed to be punished severely.  And if I were Bar Counsel, I'd check to make sure the attorney is not practicing during his suspension.