Oregon Supreme Court holds conversations within law firm are privileged in malpractice case against the law firm

Last week, the Oregon Supreme Court became the third state high court to hold that consultations between a law firm's attorneys and the firm's in-house counsel are privileged from discovery in a malpractice action even if they concern the firm's potential liability to a current client. The case is Crimson Trace Corp. v. Davis Wright Tremaine LLP. The issue was most recently addressed in Massachusetts and later in Georgia and has generated an interesting debate. Go here for an article criticizing the Massachusetts and Georgia decisions, and here for a debate on them.

Podcast on lawyer advertising

Here is a podcast discussing issues related to lawyer advertising.  There is nothing particularly new here, but it might be interesting to those looking for new material to discuss old issues.

Podcast on jury nullification

I think the discussion of whether it would be ethical for an attorney to encourage the jury to engage in "nullification" is very interesting.  Unfortunately, we don't have enough time to go cover it enough in class.  For those of you looking for materials to discuss this issue, here is a podcast and discussion I just found in the website The Life of Law.

Yet another shameful case of prosecutorial misconduct out of New Orleans

There is a new chapter in the shameful history of prosecutorial misconduct in New Orleans.  Another prisoner has been released, this time after spending 34 years in prison due to what the current Orleans Parish District Attorney called “shameful” misconduct.  What is truly shameful is that this is obviously not an isolated incident.  The case is out of the same office that resulted in Connick v. Thompson, Smith v. Cain and more.  The New Orleans Times-Picayune has the story here.

New York Times reports on internal investigation of GM legal department

Here is an interesting article in today's New York Times that reports on an on-going internal investigation on the role of GM's lawyers in the recent recalls and investigations that resulted in GM's agreement to pay a $35 million dollar fine.

For more on the GM mess go here and scroll down.

Minnesota Supreme Court has remanded the order disqualifying Covington & Burling in a case I have been writing about for almost 2 years

Back in August of 2012 I first reported on a complaint filed by 3M Corp. against the law firm Covington & Burling alleging that the firm had dropped 3M like a hot potato in order to represent the state of Minnesota in a case against 3M.  Covington argued that it was no longer representing 3M by the time it agreed to represent the state.  I posted my comments on that claim here. 

Meanwhile, aside from that lawsuit, 3M moved to disqualify Covington in the case in which it was representing the state against 3M.  I posted my comments on that here.  Although 3M claimed a violation of the hot potato doctrine as the basis for its motion, the court decided it on different grounds.  The court agreed with Covington that 3M was a past client, rather than a current one, thus making the hot potato doctrine irrelvant, but agreed with 3M that Covington should be disqualified for violating the rule against conflicts of interest as they relate to former clients (rule 1.9).   I commented on the disqualification order here.

Covington and its client then appealed the disqualification order and I wrote my thoughts on their arguments here.  I argued that once the court finds that the past representation of 3M and the current representation of the state against 3M are substantially related, Covington's arguments are relatively weak. 

In July 2013, the court of appeals affirmed the disqualification order, but Covington then appealed to the Minnesota Supreme Court.  For my post on this go here, which has a link to the opinion itself.

Now, almost two years after the affair began, the Minnesota Supreme Court has reversed and remanded the case holding that the lower court did not make enough findings to support its conclusion that the cases were substantially related.  This does not mean that Covington will not be disqualified; only that the court needs to make further findings to determine if it is justified to disqualify the firm.  However, the opinion suggests some of the factors it things should be considered and, in my opinion - for the reasons I argued in my post on the appeal to the appellate court - those factors will support Covington's position more than 3M's motion.

The Legal Profession blog has a note on the decision here.  Thanks to the Legal Ethics Forum, you can download the opinion here.

Debate on LegalZoom's business model continues

Back in April I reported that the South Carolina Supreme Court found LegalZoom is not engaged in unauthorized practice of law.  However, the debate as to Legal Zoom's business model continues. Some of the members of the Legal Ethics Forum debate the issue here and Professional Liability Matters addresses the issue here.

Indiana Supreme Court decides case that can help define the limits of the state's authority to discipline lawyers for comments about judges

I have been following the debate about whether (or under what circumstances) should the state be allowed to discipline a lawyer for comments about judges or other lawyers.  For example, see here, here, and here.  Adding to this discussion, the Indiana Supreme Court recently decided a case that may be helpful for defining the limits of the state's authority to discipline for speech about judges or other lawyers.

The case is called Brewington v. State.  It involved a non-attorney's conviction for intimidating a judge.  The conviction was upheld but the court's discussion develops an interesting analysis based on the distinction between speech that may be a threat to someone's reputation (which is protected) and speech that actually expresses a threat of physical harm (which would not be).  For a discussion of the case go here.

Thoughts on discovery practice

In class we spend a lot of time discussing ethical issues related to the practice of discovery.  A few days ago, Max Kennerly, of the Litigation and Trial blog posted some of his thoughts on issues related to discovery and to the discussions over motions to compel that take place after one of the parties fails to comply with their duty under discovery rules.  You can find the post here.  It is short  and worth reading.

Dramatization of the deposition about the definition of a photocopier

A few years ago, I posted a link to an article describing the deposition discussion regarding the definition of a photocopier.  Today, the New York Times published a video dramatizing the deposition.  If you can't see it below, try this link.

More criticism of the political ad in South Carolina

I just posted a long comment on the political ad in South Carolina attacking a candidate because he used to do criminal defense work (see below).  Thanks to the Legal Ethics Forum, here is yet another article criticizing the ad.

South Carolina Supreme Court finds LegalZoom is not engaged in unauthorized practice of law

The Legal Ethics Forum has the story, links and comments here.

How NOT to practice law: don't tell the court that the case has settled

In case the double negative in the title of this post is too confusing, here is the bottom line:  if your case settles, tell the judge!  Although the New Jersey Appellate Division did not impose sanctions, it sharply criticized counsel who had failed to timely advise the court that the case had settled.  Go here for the story.

Republican Governors Association launches campaign against political candidate based on the fact the candidate is a lawyer

The Republican Governors Association has launched an ad campaign in support of the reelection of Gov. Nikki Haley that should be of concern to all lawyers.  The campaign attacks State Senator Vincent Sheheen because he represented people accused of crimes.

This is reminiscent of the similarly shameful attacks made by politicians and others in the public eye against lawyers who represented detainees at Guantanamo or death row inmates. As you probably remember, just recently the recommendation to appoint Debo Adegbile’s to head the Civil Rights Division of the Department of Justice was derailed because he had represented a death row inmate when he was a lawyer at the NAACP Legal Defense Fund.  Likewise, a few years ago, Liz Cheney and others conducted a vigorous campaign against the hiring of lawyers who had represented Guantanamo detainees.

To its credit, the South Carolina Bar Association has stepped forward to denounce the recent campaign ad.  South Carolina Bar President Alice Paylor has been quoted as saying that “What they’re attacking is the whole basis for the U.S. and the U.S. Constitution. According to them, I guess everyone accused of something is automatically guilty.”  The ABA Journal.com has more on the story here.

Professor Jonathan Turley has commented that the trend to attack political candidates for the fact that they represented criminal defendants is a "truly vile and McCarthyist trend that seeks to punish professional working within our criminal justice system." (Interestingly, the New York Times also used a reference to McCarthyism in 2010 when discussing the attacks on Guantanamo detainee lawyers.  See here).

I agree; and for that reason I am going to copy below part of my comments from 2010 when the debate over the Guantanamo detainees was going on.  You can click on the dates to read the original comments and see more links.


March 7, 2010

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

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

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

The attack on the administration and on the lawyers themselves is ... based on just plain ignorance of what it means to be a lawyer and to believe in and defend the rule of law and the Constitution. I am happy to see that it has been strongly denounced by so many so quickly, including by lawyers prominent in the previous administration.

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

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

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

I commend the administration for recognizing the value of commitment to doing the right thing, to defending the rights of the accused, to defending the constitution and that which makes our legal system fair and valid.....

[The original post has the video of the ad that started the whole controversy.]


March 8, 2010

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

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



March 10, 2010

Stephen Colbert interviews a Guantanamo detainee defense lawyer.

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

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


March 17, 2010

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

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

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

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

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

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

And to that, I say, "well said!"

Vetoed legislation allowing California State Bar to impose fines for unauthorized practice of law is quietly revived

The ABA Journal.com is reporting today that legislation allowing the California State Bar to levy fines for unauthorized practice of law has been proposed again after having been vetoed last year.  According to the story, earlier this month, the same legislative proposal "was quietly slipped into another bill that had been stripped of its original content, which let it skip the committee markup process just before an 11-day break for the legislature, the Sacramento Bee reports." 

Article on the need for a duty of candor to clients

Here is a short article arguing that the Model Rules should have a rule directly requiring honesty to clients.

Thanks to the Legal Ethics Blog for the link

What is the best predictor of happiness among lawyers?

The Smithsonian Magazine has a review of an article that attempts to determine the factors that go into making a lawyer happy.  According to the article it was not the prestigious lawyers, or those who did the best, or even those who made the most money who were the happiest. It was actually those who had the lowest incomes and the lowest grades in law school—most of whom were public service lawyers.  The abstract of the study reads as follows:

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

Judge reprimanded for sexist remarks

The ABA Journal.com is reporting that a former New Hampshire judge has been reprimanded for comments he made at a meeting with public defenders.  Reportedly he said that the worsening public regard for the legal profession was due in part to the proliferation of women lawyers.   According to public defenders who were present at the meeting, the judge said the legal profession risks losing respect because so many more women are becoming lawyers, that doctors are not respected in Russia because medicine is a female-dominated profession and that the teaching profession has been harmed because females are choosing careers in law over education.  The ABA Journal has more details and links to more information on the story here.

Competence means more than knowing the law

I always make a point of reminding my students that being competent includes understanding the day to day operation of law practice and the management of an office.  A recent case from Nebraska illustrates this.  In this case, State of Nebraska v. Sundvold, the Nebraska Supreme Court suspended an attorney for three years followed by probation for two years on reinstatement in part because he was not equipped to manage his law practice.  The attorney had worked in-house for an insurance company before entering private practice and proved not to be ready for it.  He did not have any experience in the financial aspects of the the practice of law. He had never negotiated a fee, handled client funds, drafted a contract for the provision of legal services, worked with a billing system or utilized a trust account.  For more, go to the Legal Profession blog here.

How not to practice law: post a video of your client buying drugs

The Illinois Attorney Registration and Disciplinary Commission recently recommended a five month suspension for a criminal defense lawyer after he posted a video of his client buying drugs on YouTube and then linked it to his Facebook page.  The attorney believed the video of the undercover drug sale would exonerate his client because he claimed it showed police planting drugs on the client. However, when viewed more carefully, it appeared the video actually showed the client purchasing drugs.  As a result, his client pled guilty and was sentenced to probation.

The Review Board found the attorney violated Rule 1.6(a) because he revealed information relating to the representation of a client without the informed consent of his client, Rule 1.4(a)(2) because he failed to reasonably consult with his client about the means by which the client’s objectives were to be accomplished and Rule 3.6(a) because he made extrajudicial statements that he knew or reasonably should have known would be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding.

(h/t Legal Ethics in Motion)

Board of Governors of Florida Bar proposes changes to the rules; recognizes non refundable flat fees

On March 28, the Board of Governors of the Florida Bar approved a number of revisions to the state's rules on trust accounts. Among other things, the new rules would recognize that flat fees can be non refundable. The proposed revisions would amend Rule 4-1.5 to explicitly state that nonrefundable fees are considered earned on receipt and must not be placed in lawyers’ trust account and also providing a definition for retainers, flat fees, and advance fees. Long time readers of this blog will remember that I have posted a number of stories on the confusing state of the law in this area.  See for example, here, here and here.  For more information on the newly proposed changes go here.

How not to practice law: offer to have your client testify against another defendant ...when the other defendant is also your client

Next week we will begin discussing conflicts of interest in criminal law practice.  Right on cue, the Legal Profession blog is reporting today on a case in which a lawyer was suspended because he had represented both a defendant husband and his cooperating wife in a drug distribution investigation and trial.  The court found the conduct violated both Rule 1.7 and Rule 1.9.

The lawyer was representing the husband while representing the wife who cut a deal in exchange for testimony against the husband.   For this reason, the court held that the lawyer "failed to appreciate the conflicting interests between husband and wife or to explain those conflicts to his clients and pursue the possibility or effectiveness of any waiver." For this reason, the court affirmed the finding that the lawyer had violated Rule 1.7, regardless of whether “actual prejudice” to the husband's defense occurred as a result. The case is called In re Solomon Neuhardt.

Lawyer convicted for helping client/husband conduct gang activities from prison

A lawyer who years ago got in trouble when she was caught on tape engaging in sexual contact with a client in a room for attorneys to meet with defendants in police custody, has now been convicted after admitting that she had helped her husband, a client whom she married while he was in prison, conduct gang activities from prison by providing money and information to others at his direction.  Go here for more on this story.

Why was this judge not disbarred?

Yesterday, the Michigan Supreme Court issued an opinion (available here) removing from the bench a judge who was in the news some time ago after it was discovered that he "texted" a shirtless photo of himself to a courtroom bailiff and that he had sex in his chambers with a complaining witness in a child-support case.  The court found that (1) the conduct was clearly prejudicial to the administration of justice, (2) that the conduct exposed the legal profession or the court to contempt, censure, or reproach, (3) that the judge engaged in conduct that was contrary to justice, ethics, honesty, or good morals, (4) that he testified falsely under oath, (5) that he failed to maintain high standards of conduct so that the integrity and independence of the judiciary may be preserved, (6) that he failed to avoid all impropriety and appearance of impropriety, (7) that he failed to promote public confidence in the integrity and impartiality of the judiciary, (8) that he allowed sexual relationship to influence his judicial conduct or judgment, (9) that he failed to be faithful to the law, (10) that he engaged in ex parte communications, and (11) that he failed to disqualify himself when he should have.

As a sanction, the court removed the judge from the bench and, if the judge is reelected as a judge in November, suspended him for six years.

Sounds like a pretty substantial suspension; but it really isn't.  Essentially, the sanction is a way to prevent the judge from running for the position again.  Were he to get elected, he would not be allowed to serve because he would be suspended without pay.  But the suspension does not apply if he is not elected.  So what is the judge to do?  Simple.  Not run for re-election and continue to practice law.  Wait. What? Wasn't he suspended?  No.  He was suspended from the bench.  Not from the practice of law.

I don't understand why the sanction was so lenient.  I think the judge should have been disbarred.  Or at the very least, suspended from the practice of law.

UPDATE (3/29/14):  One of my readers e-mailed me to let me know that in Michigan, to disbar a judge removed from office, a separate disciplinary proceeding needs to be filed by the Attorney Grievance Commission.  So, that explains that.  I still would have liked to have seen the court take a stance on the issue, though.  I would have liked to have seen the court say that such a grievance should be filed.  This is not necessary and I assume the Commission might take on the case anyway, but it never hurts to have a state Supreme Court remind lawyers in the jurisdiction that misconduct should not be tolerated.

Illinois Appellate Court imposes sanctions for frivolous appeal

As you know, attorneys have a duty not to pursue frivolous claims, a principle that appears both in the rules of professional conduct and the rules of civil procedure (usually identified as Rule 11).

Today, the Illinois Court of Appeals reminds us that there are other rules that hold the same principle as to appellate practice. In a case called Fraser v. Jackson (available here), the court found a party and their lawyer should be sanctioned for pursuing a frivolous appeal.  Quoting an older case, the court stated

We find that this appeal, viewed as a whole, was frivolous, that it was taken for an improper purpose, and that it was filed specifically to harass and to cause unnecessary delay and needlessly increase the cost of litigation. We choose to impose sanctions for this conduct, finding that cases like this drain valuable resources intended to benefit those who accept the social contract of living under a law-based system of government

The sanctions will have to be paid by both the client and the lawyer.

Illinois Appellate Court issues opinion on splitting fee agreements

Just over a week ago, the Illinois Appellate Court, First District, issued an opinion addressing two important issues related to fee splitting (or sharing) agreements:  (1) whether attorneys can enforce fee-splitting agreements if they have not strictly complied with Rule of Professional Conduct 1.5(e), even if they can claim they "substantially complied" with the rule and (2) whether a lawyer accused of reneging on such an agreement can raise the non compliance with Rule 1.5(e) as a contractual defense where it was his own conduct that allegedly caused or contributed to a violation of the rule.  The court says NO to the first question but YES to the second one.  The case is called Fohrman & Assocs., Ltd. v. Marc D. Alberts, P.C., and it is available here.

As to the first issue, the court holds that lawyers' fee-splitting or referral agreements are unenforceable if the contracting attorneys do not strictly comply with the ethics rule that requires each lawyer to ensure that the clients are informed in writing about the basis for the arrangement—including the exact split in fees and the division of the lawyers' responsibilities.

I understand saying that the conduct is contrary to the rules if it does not follow the rule.  In other words, I understand saying that a lawyer can be disciplined for not following the rule.  That should be obvious and makes sense.

But the issue here is not about misconduct or discipline, it is about the validity of a contract.  For this reason, I am not so sure I like the result of the case, particularly the answer to the second question.

In deciding that an attorney could raise the non compliance of the rule as a defense even when that attorney had arguably caused the non compliance, the court stated that "we ... reject an argument that the referral agreement should be enforced because of defendants' alleged "nefarious" conduct. ... In doing so, we do not condone any alleged misconduct or encourage unfairness in relationships between attorneys. We uphold the Rules' interest in protecting clients above the interests of attorneys in recovering fees."

Taking this position, the court may not be condoning the misconduct, but it is allowing the attorney who allegedly engaged in it to get away with it.  And, more importantly, the reason it states to do so does not make sense.  The court says it is deciding the case this way because it is best to protect the interests of the clients "above" the interests of the attorneys in recovering fees.  Here is the problem with this:  enforcing the agreement would not affect the interests of the clients at all; the only interest affected is the interest of one of the attorneys.

Take the typical splitting fee agreement for example:  Lawyer A refers a case to Lawyer B.  Lawyer B agrees to take the case on a contingency of 1/3 of the recovery and agrees with Lawyer A to share that fee.  According to the agreement, Lawyer A would get 1/3 of the 1/3 Lawyer B gets out the eventual recovery.  Now assume that Lawyer B dupes Lawyer A into believing that Lawyer A has done everything he needed to do for the agreement to be valid.  [I am not saying this is what happened in the real case; this is a hypothetical].  Continue to assume that even though Lawyer B told Lawyer A the agreement is in order, the agreement does not strictly comply with the Rule 1.5(e). Months later, the case settles for $9,000.  Lawyer B gets the check and gives the client $6,000, and keeps the $3,000 that corresponds to his fee.  Lawyer A then calls Lawyer B asking him to share the fee as promised.  Lawyer B refuses and they end up in court arguing over it.

Here is the important part:  the client has been satisfied and is out of the picture.  He does not care what happens next.  His rights have been well taken care of.  The fight that ensues is between the attorneys and if they want to fight over it for years to come, that's their business.  The client is not involved and couldn't care less.  He has his money and has moved on.

The question for the court relates to the right of Lawyer A to be able to recover the fee he negotiated with Lawyer B.  Would it be fair to allow Lawyer B to deny Lawyer A his share of the fee because Lawyer A did not comply with the rule if it is true that the reason that happened was because of Lawyer's B's assurances to Lawyer A?  I don't think so.

As a contractual matter, it seems to me there were two more equitable solutions to the problem presented by the case in Illinois.  First, it could be held that even though the conduct was in violation of the rules, the contract should be enforced between the parties (the lawyers) and then refer the matter of the misconduct to the authorities.  In the alternative, the court could have adopted a view used in other jurisdictions that have decided that when lawyers from different firms agree to jointly represent a client, they enter into a “joint venture” or an “ad hoc partnership” in which the lawyers implicitly agreed to share profits or losses equally regardless of whether one attorney provides more labor or skill than the other.  As a contract interpretation matter, wouldn't either one of these be a more equitable solution to the problem?

Is a claim for breach of fiduciary duty a torts claim or a contracts claim?

As you probably know, a cause of action against a lawyer for "breach of fiduciary duty" is different than a cause of action for malpractice.  The latter is clearly a cause of action in tort which requires the plaintiff to meet the elements of a negligence claim.  The former, however, is different and, in fact, sometimes allows a plaintiff to state a claim under circumstances where a claim for malpractice will not be recognized.  See Tante v. Herring  453 S.E.2d 686 (Ga. 1994) for an example of this.

Having said this, then is a cause of action for breach of fiduciary duty not a torts claim?  If not, what type of claim is it?  A claim for breach of contract, perhaps?  I imagine there are cases out there that have addressed this question, but I have not done the research to determine what seems to be the majority view on this.

What I can tell you today is that there is a new case on the subject and that it holds the claim is a torts claim.  Interestingly, the holding worked in favor of the defendant because the statute of limitations just happened to be shorter for torts claims.

As reported in the Legal Profession Blog, the Connecticut Supreme Court concluded that "the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims."

The case is called Meyers v. Livingston and you care read it here.

Colorado amends comment to Rules of Professional Conduct to deal with concerns about providing legal advice regarding marijuana

Because many aspects of the use of marijuana and the marijuana industry violate federal law, there is some debate as to whether counseling clients about legal matters related to state legalized marijuana would be a violation of the rule that bans an attorney from helping a client commit a crime. In response to these concerns, the Colorado Supreme Court has adopted a new Comment to Rule 1.2, which says that a lawyer "may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16 and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy." Prof. Andrew Perlman shares his views on the issue at the Legal Ethics Forum.

Is financing your law practice through "crowdfunding" ethical?

Can an attorney accept a loan from a private lender if the attorney must commit to pay it back by agreeing to grant the lender a certain percentage of the attorney's earnings for a number of years? This is a new issue raised by a new form of funding known as "crowdfunding." I must confess I don't know much about it, but I think it presents an interesting question for lawyers.

Starting a law practice can be difficult under any circumstances, and it becomes even more difficult when you consider a bad economy and student debt. So what can a lawyer do? Crowdfunding offers a source of funds that is different from traditional loans. In a traditional loan situation, the lender will recover the loan by charging a set amount per month (including interest). Crowdfunding allows you to raise capital in exchange for a portion of your future income. In essence, through some crowdfunding websites, you can ask people to give you money and then promise to give them a share of your earnings.

Is this just like the TV show "The Shark Tank" , but online and with "investors" who are just every day people? Would it be unethical for a lawyer to go on the TV show The Shark Tank and ask for money in exchange for a share of the law firm the lawyer wants to create? Assuming "the shark" is not a lawyer, it sounds to me a strong argument can be made the answer is yes because the end result would be that the shark would become a partner in the law firm.

Is crowdfunding different? This blogger says no. He argues that agreeing to the terms of a crowdfunding funding agreement would constitute a violation of rules against fee splitting with non lawyers. On the other hand, My Shingle argues crowdfunding is different and should not be considered to be a violation of the rules.

UPDATE August 19, 2015:  New York State Bar Association issues opinion on whether using crowdfunding is ethical.  Go here for the story and links.

Project on Government Oversight report on department of justice attorneys' misconduct

Long time readers of this blog know that I have posted many stories on prosecutorial misconduct and that I have been critical of the Department of Justice's approach to misconduct by federal prosecutors.  I have also criticized the practice of many judges who refuse to disclose the names of prosecutors who engage in misconduct while they have no problem disclosing the names of other lawyers.

Now comes news of a very disturbing report that supports my concerns.  The Project on Government Oversight (POGO) has published a disturbing report that concludes that the Department of Justice has been concealing hundreds of ethical violations by its prosecutors.  According to the POGO website,

An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work. The violations include instances in which attorneys who have a duty to uphold justice have, according to the internal affairs office, misled courts, withheld evidence that could have helped defendants, abused prosecutorial and investigative power, and violated constitutional rights. From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions, according to a Project On Government Oversight review of data obtained through the Freedom of Information Act and from OPR reports.In the majority of the matters—more than 400—OPR categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.

The report itself is available here, and there is more analysis of it here.  The Legal Ethics Forum has more here and Seeking Justice has a comment here.

Is there something wrong with offering unpaid internships in a law firm?

I don't think there is anything illegal or unethical about offering unpaid internships in a law firm.  However, the fact you can do something does not necessarily mean you should do it.  Go here for a short post arguing that lawyers should not offer unpaid internships.

Article about prosecutorial misconduct in North Carolina

Here is a new article on the latest prosecutorial misconduct scandal in North Carolina.

Maryland Disbars Attorney For Accusing Judges of Misconduct in Emails. Was it justified?

Disbarring the Critics is reporting that in late February, the Maryland Court of Appeals disbarred a long-time Maryland attorney for alleging in emails that several Maryland judges had engaged in misconduct. The decision, Attorney Grievance Commission v. Frost, is available here.

Disbarring the Critics has a long comment on the case here, in which it concludes: "Make no mistake about it, the the justices on Maryland's highest court were not taking the action they did to protect the public, but were instead acting to protect their colleagues from what they believed to be unfair criticism by Frost. Undoubtedly those judges also know that the Frost case will be a warning shot to let other Maryland attorneys know that if they dare to criticize a judge publicly or privately they can be targeted for discipline."

Former rapper turned lawyer's ad goes viral

Just when we thought we had seen the worst attorney ad of the year during the Super Bowl (see here and here), in comes an internet commercial for a lawyer in the Pittsburgh area.  You can watch it below.  It speaks for itself.  But to give you a hint of how it has been received, here is a quote from the blog Res Ipsa Loquitur: "The advertisement is clearly tongue-in-cheek but in the end I find it less than comical. Muessig [the lawyer] promises to help felons get back to crime and proclaims that he “think like a criminal.” It fulfills the worst stereotypes of criminal defense lawyers as felons are shown committing crimes and saying “Thanks, Dan.” Muessig may have a skill for thinking like a criminal but he clearly has yet to master the talent of thinking like a lawyer."  You should read the full comment here.

)


Tom Loftus, spokesman for the Allegheny County Bar Association, said he found the ad "insulting to Pittsburgh lawyers and lawyers across the country, who take great pride in their profession."  Without more, of course, that is not enough to justify the state to ban the ad or to discipline the lawyer.  In the end, the issue here is not whether the state has the authority to intervene, but whether it is really a good idea for the lawyer to engage in this type of campaign. Just because you have the right to do something does not mean you should do it.  For more comments on the ad go here, here and here and check out the short video below.

Controversial Supreme Court decision on asset forfeiture and access to legal services

About two weeks ago. the Supreme Court decided a case that has important implications on a criminal defendant's access to legal representation.  The case is called Kaley v. US and the opinion is available here.  You can also find links to the lower court's opinion and many other documents in the case here.

An editor of the SCOTUS blog summarizes the facts as follows:  "In 2007, Kerri Kaley and her husband, Brian, were indicted on charges arising from a plan to steal and then re-sell prescription medical devices. Based on the indictment, the federal government also got a restraining order to freeze their assets. The Kaleys asked the district court to lift the asset freeze so that they could pay their lawyers: although they did not dispute that the frozen assets could be traced to the conduct for which they were indicted, they argued that the charges against them were “baseless.” Both the district court and the U.S. Court of Appeals for the Eleventh Circuit denied the request, holding that it was prohibited because the Kaleys had no right to a hearing to challenge the grand jury’s determination that there was probable cause to support the charges against them. This morning a divided Supreme Court agreed, preserving a frequently used tool in the government’s arsenal for prosecuting crimes."  This author's analysis of the case is available here.

In the days that followed the announcement of the decision a number of very critical reviews have been published.  The White Collar Crime Prof Blog, for example, concludes that

The opinion, written by Justice Kagan, exalts the inviolability of the grand jury and demonstrates a naive misunderstanding of (or lack of concern about) the reality of its role in the determination of probable cause, ignores the presumption of innocence, and denigrates the importance of independent defense counsel in the criminal justice system. It tilts the playing field of justice in the government's favor by giving the government, in some cases, the option to deprive the defendant of the counsel he has selected or intends to select. [You can read the full comment here.]

Likewise, Simple Justice states:

In considering the Court’s adherence to beloved legal fictions, one of which is that a grand jury indictment conclusively proves the existence of probable cause to believe that a crime occurred and the defendants committed the crime, the majority reduced the issue before it to an absurdity. What about the presumption of innocence? What about the right to counsel of choice? What about the constraints of forfeiture to the proceeds of crime?  [You can read the full comment here.]

CT Law Tribune article on prosecutorial misconduct

Here is a link to a good article in the Connecticut Law Tribune about prosecutorial misconduct.

Florida Supreme Court rules illegal immigrants can't be admitted to practice

As you probably remember, back in January the California Supreme Court issued a long awaited decision holding that an undocumented immigrant should be allowed to practice law. Go here, here and here for older posts on the case, including a link to the oral argument.

A similar case had been making its way through the courts in Florida and today the Supreme Court issued its decision reaching the exact opposite result, holding "that unauthorized immigrants are ineligible for admission to the Florida Bar." Thus, applicants are required to demonstrate that they are legally present in the United States.  One of the judges concurred "reluctantly."  Go here for a copy of the opinion.  The Legal Profession Blog has more.

New York changes its regulations on contingency fees

Eric Turkewitz, of the NY Personal Injury Law Blog, reports on an amendment to the New York rule that describes how contingency fees should be calculated.

UPDATE on the proposed amendments to the Florida rules

Earlier today I posted a comment about proposed changes to the rules in Florida.  See here.  I just received the proposed new text and here are my comments.

First, the rule will use the following definitions:

(A) Retainer. A retainer is a sum of money paid to a lawyer to guarantee the lawyer's future availability. A retainer is not payment for past legal services and is not payment for future services. 

(B) Flat Fee. A flat fee is a sum of money paid to a lawyer for all legal services to be provided in the representation. A flat fee may be termed "non-refundable."  

(C) Advance Fee. An advanced fee is a sum of money paid to the lawyer against which the lawyer will bill the client as legal services are provided.

The choice of words is interesting.  The proposal is using the word "retainer" to mean what other jurisdictions call a "classic retainer" while it is using the words "advance fee" to define what others call a "security retainer."

The Comment to the rule explains the analysis related to the issue of whether a fee can be non refundable:

     A lawyer may require advance payment of a fee but is obliged to return any unearned portion. . . . A lawyer is not, however, required to return retainers that, pursuant to an agreement with a client, are not refundable. A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer's trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned. Nonrefundable fees are, as all fees, subject to the prohibition against excessive fees.

Although I am not totally convinced the language used in the definitions is the best, as I said in my previous post, I think the analysis this proposal is much better than the one offered in many of the cases that have been decided on this issue.

Florida Bar of Governors proposed amendment to clarify the concept of flat fees and retainers

I have often complained about the confused state of the law as it relates to the notion of non refundable "flat fees" which in many jurisdictions converts the flat fees into security retainers.   Go here for an example of the problem and here and here for more.

Into this mess, now comes the Florida Bar Board of Governors which has proposed an amendment to Florida's Rule 4-1.5.  The amendment states that non refundable fees are considered earned on receipt and must not be placed in lawyers’ trust accounts.  I have not seen the exact language of the proposal (I requested a copy here).  However, I can say that I think saying that non refundable fees are earned on receipt seems like a good idea, but only as long as the total amount of the fee remains reasonable, which is the accepted standard to evaluate any fee's ethical validity.

According to Lawyers Ethics Alerts, the proposed language in the comment to the rule provides: “A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer’s trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned. Nonrefundable fees are, as all fees, subject to the prohibition against excessive fees.”

Client Red Flag Bingo

As all practicing lawyers know, it is important to listen carefully to prospective clients.  It is important to understand their concerns, the details of their concerns and what it is they want us (the lawyers) to do for them.  It is also important to determine if they can be "problem clients."  That's right, "problem clients."  We all know them and often we don't realize they are a problem until it is too late.  But there are many ways to pick up on the signs early on.  There are a few obvious red flags we can learn to spot quickly.  

My favorite is the client who begins an interview by complaining (or, worse, insulting) their former lawyers.  Red Flag!  That idiot lawyer who did not know what he or she was doing the prospective client is complaining about could be you some day.  

Learning to recognize the signs of a problem has always been part of the learning curve of all new lawyers, but now there's help.  Thanks to this wonderful chart prepared by L. Maxwell Taylor and discussed over at MyShingle.com, you too can learn to spot the reg flags.  Read the chart carefully and keep it handy.  Fill a spot during an interview and you will know how to handle it.  Fill more and you are warned.  Fill a full row, and you should probably consider asking the client to Go!

How not to protect confidential information: throw your client files in boxes where anyone can find them and read them

The Legal Profession blog is reporting that the Indiana Supreme Court has imposed a suspension of not less than two years without automatic reinstatement on an attorney for, among other things, discarding client files without protecting the confidential information in them.  According to the story:     "When moving his office location in 2009, Respondent threw several client files containing confidential client information into a trash bin, where they remained for several days. A newspaper reporter found information in the files relating to paternity and divorce cases, as well as Social Security numbers and financial records."

The court found the conduct violated the duty of confidentiality because he attorney revealed confidential information in violation of rule 1.6(a).  However, it does not sound like the attorney intended to reveal the information.  He was just careless about it.  Applying 1.6(a) under the circumstances means that the attorney's negligent handling of the files is enough to support a finding of a violation of the duty.  Or, in other words, that an accidental disclosure is, by itself, evidence of a violation of the duty.

This would not necessarily be the case under the most recent version of Model Rule 1.6.  This version recognizes two different duties:  under 1.6(a) attorneys have a duty not to purposely disclose confidential information, while under 1.6(c) attorneys have a duty to take reasonable measures to prevent inadvertent or unauthorized disclosures.  This means that an accidental disclosure, by itself, does not mean the attorney violated the duty of confidentiality.  

Applied to the facts of the Indiana case, however, I think the result would be the same because the attorney could not even argue he meets the lower standard.  Clearly, he did not take reasonable measures to protect the confidential information in the files.

How not to practice law: tell your client what to say when testifying

As all litigators know, there is an important difference between helping a witness prepare in advance of their testimony and telling the witness what to say.  The first is not only allowed, not doing it may be considered a violation of the duty of diligence and an example of malpractice.  The second, however, is improper and can subject a lawyer to discipline.  A recently reported case in the Legal Profession blog illustrates the difference (here).  In this case, the lawyer was disbarred after it was revealed he told a witness what to say prior to a hearing.

As if we need any more stories of prosecutors who do not abide by their obligations

As if we need any more stories of prosecutors who do not abide by their obligations, here is a particularly troubling one.

Still talking about the decision to refuse admission to Stephen Glass

I recently posted a link to comments about the California Supreme Court's decision to deny admission to Stephen Glass.  Here's more:  Over at the Legal Ethics Forum, two renowned scholars have published short comments.  In the first one, Mitchell Simon (University of New Hampshire) argues that although  the court had ample legal basis to reach the decision it reached, the opinion emphasized the wrong analysis.  You can read his comments here.  In the other comment, Brad Wendell (Cornell) discusses social psychology issues presented by the case and the approach to the evidence presented and the question of whether the decision should have been based on the notion that past conduct is a good way to predict future conduct.  You can read his comment here.

Still talking about the Super Bowl... the commercial, that is...

When attorney Jamie Casino spent who knows how much money on a 2 minute commercial spot during the Super Bowl, I am sure he was looking for publicity.  And, say what you want about the commercial itself, publicity is just what he has gotten.  Everyone seems to be talking about it.  I have seen it mentioned in news blogs, legal blogs, academic blogs, you name it.  I talked about it in class yesterday, and here I am again today to give you a link to yet another comment about it...  So, he wanted publicity and he got it... but, unlike the saying goes, not all publicity is good publicity.   Over at Res Ipsa Loquitur, comparing the lawyer to a car salesman and an informercial pitchman, Prof. Jonathan Turley writes: "I found the commercial ... to be unprofessional and self-serving and just a bit creepy" and "I found the video to be uncomfortable to watch as Casino seems to live out his fantasy of being some action figure with tight jeans and a flaming sledgehammer with a cross on it. Sort of Nicholas Cage meets Clarence Darrow meets El Mariachi. "  You can read the full post (and the many comments below it) here.

Are law firm blogs governed by advertising rules?

Real Lawyers Have Blogs is asking whether law firm blogs are governed by advertising rules: "...why throw blogs in with things that are closer to buying billboards and television ads? Am I the only one who sees blogging as a form of networking? Networking not unlike that done by lawyers before the Internet. Networking that really has nothing to do with advertising."

These are valid questions, and the easier one to answer is "why throw blogs with the billboards?"  I'll tell you why:  because some blogs are just like billboards.

Take a look at the blogs of the law firm in the Super Bowl ad I wrote about earlier tonight.  The first story in one of them is about a verdict the firm obtained.  I then glanced at a few posts in the other blogs.  Every single one of them ends with a paragraph that, in one way or another, advertises the firm.  For example:  "If you’ve been injured by a DUI driver, call ... for help.   We offer free consultations to review your claim, and our services are free unless we win your case." or "If you need to hire an experienced DUI injury lawyer, call .... Our attorneys will fight hard to get you maximum compensation for your case while making the process less stressful for you and your family."  or "If you have suffered injuries caused by a defective pharmaceutical product, please give us a call. Our team is prepared to answer any questions you may have, and we will evaluate the facts of your case to determine if it qualifies for a potential claim."...  You get the idea.  These blog posts are, in my opinion, clearly a form of advertising and I have no problem thinking that, if we are going to have rules related to advertising, they should apply to those blogs.

But not all blogs are created equal.  Compare those mentioned above with Litigation and Trial, the New York Personal Injury Law Blog, Day on Torts and Abnormal Use all of which are published by, and the posts are authored by, practicing lawyers.  But they write about the law, not about their cases, not about how you should hire them, etc.  Those blogs, in my opinion, should not fall within the category of advertising. They provide news and commentary on the law and other matters of interest to their authors and their readers.

Which brings us back to the original question.  Are all blogs subject to the rules on advertising?   For now, the closest we have to an answer is "it depends." Perhaps until it is universally understood that a blog is something other than advertising, it depends on the content of the blog.  As the court decided in Hunter v. Virginia, if the case can be made that the content of the blog is disguised advertising, then a court can easily find that the blog is subject to the rules related to advertising.  (Go here to see my first post about Hunter, published before it was decided.)

In other words, I guess the answer to whether blogs are subject to rules on advertising is yes if the rules say they are, until someone challenges it and wins.

Unfortunately, I am not sure this answer is satisfactory for a law firm considering adding a blog to its website.  What if the state adopts a rule that says that law firm blogs will be subject to advertising rules (as it appears to be the case in Florida)?  The firm would have two options; the same two options Hunter had: to comply with the rules or to challenge them.   Hunter challenged them and lost.  The challenge in Florida is pending.

Stay tuned.

UPDATE 6/18/17:  The Professional Committee of the California Bar has issued an opinion on whether blogs are subject to advertising rules.  Go here for the details and links.

Illinois disciplinary authority seeks sanctions against prosecutor for improper comments during opening statement

I have reported on many cases where courts reverse convictions because of improper arguments by prosecutors.  Here, here and here are three recent examples.  In many of those cases, however, the prosecutor is not disciplined for the conduct.  Today, however, the Legal Profession blog is reporting that the Administrator of the Illinois Attorney Registration and Disciplinary Commission has filed a formal complaint against a prosecutor for comments made during a murder trial's opening arguments.  According to the complaint, the argument was improper "because it served no purpose other than to appeal to racial prejudice."   You can read the complaint here.

Troubling Super Bowl ad

There is a new contender in the worst attorney ad category.  Take a look below at a commercial aired during the Super Bowl by an attorney in Georgia.  It has gathered some attention in a number of legal blogs...

John Steele, at the Legal Ethics Forum, does not hate the commercial, but he correctly points out that slighting your former clients is not OK.

Similarly, at the New York Personal Injury Law Blog, Eric Turkewitz points out that "[i]f he will diss his former criminal defense clients today, ... what will he say about his current clients tomorrow? How do you trust someone who will rip into his prior clients?"

Professor Jonathan Turley has more comments here.  He found the commercial to be unprofessional and creepy.

Finally, in a longer comment that is worth reading, over at Litigation and Trial, Max Kennerly correctly points out that the underlying story of "redemption" by switching over from criminal law defense to personal injury is "troubling" (to say the least):

"Much as I can relate to the promotion of my own field of work (representing plaintiffs, which Casino just started doing in 2012) as a noble calling . . .  I’m dismayed by his negative portrayal of his former field, criminal-defense. In his prior work as a criminal-defense lawyer, did he break ethical rules? Did he conspire with clients to commit crimes? If not, then what’s the problem? What is he ashamed of? The ethical practice of criminal defense? He’s of course allowed to have whatever opinion he wants, and to practice in whatever field he wants, but when he starts implying that criminal-defense representation is inherently immoral or repugnant in an advertisement watched by millions of non-lawyers, he does a terrible disservice to our whole justice system, from the Constitution to the public defenders."   [The comment is longer and goes into other issues.  It is worth reading here.]

Judge for yourself.

Concurrent or Joint representation in adoption cases

The District of Columbia Bar Legal Ethics Committee has just issued a new Opinion in which it addresses ethical issues that commonly arise in private adoption matters.  The summary of the opinion states:

... Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.

You can find the opinion here.

(In my class, we discuss some of these issues by discussing a case from Arizona called In re Petrie in which an attorney attempts to negotiate a private adoption.)  

Thanks to the Legal Profession Blog for the link.

Court of Appeals for the Seventh Circuit decides question left open by the US Supreme Court in 2010: prosecutor should not be immune to civil claims for misconduct during investigation phase of a case

Back in 2009, the U.S. Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington in which it was asked to decide an important issue related to possible civil liability for prosecutorial misconduct. In that case, two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.  In response to the claim, the prosecutors contended that they had absolute immunity from liability because it has been held that prosecutors have absolute immunity from civil liability for their conduct in the process of prosecuting the case.  The issue in the case, though, was whether the same immunity should apply to the prosecutors' conduct in the process of investigating or "building" a case.

Should their right to immunity (or the level of that immunity) change depending on the role prosecutors play at the time of the alleged violation of civil rights? In Pottawattamie, the prosecutors' misconduct initially took place while they were involved in investigating the crime but it continued during the trial since they presented perjured testimony.  Should the immunity that protects the conduct during trial affect the right to recover for the misconduct that took place before the trial?  If so, couldn't a prosecutor avoid liability for pre-trial misconduct by making sure he introduced the tainted evidence during trial?

These are all important questions that the Supreme Court was ready to address, but it never got to decide the issues because the case settled soon after the oral argument (for $12 million).

Three years later, in an opinion written by the very influential Judge Richard Posner, a split panel of the Court of Appeals for the Seventh Circuit has held that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction.  The case is called Fields v. Wharrie and the opinion is available here.

The case is remarkably similar to the one before the Supreme Court back in 2010.  Here a prosecutor fabricated evidence against a defendant during the investigative stage of the case. He then coerced witnesses to give testimony that the prosecutor (as well as the witnesses) knew to be false.  Based on the false evidence, the defendant was convicted of two murders. The defendant eventually was acquitted in a retrial and subsequently received a certificate of innocence from the court in which he had been tried.

In the opinion, Judge Posner addressed the same issues raised back in 2010.  For example, he explains that "[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a ‘license to lawless conduct,’which the Supreme Court has said that qualified immunity is not to do."

For more information and commentary on this important case go to Seeking Justice, Res Ipsa Loquitur and the ABA Journal.

New Hampshire considers new jury nullification statute

In class we discuss the concept of jury nullification and the issue of whether it would be proper for an attorney to ask the jury to ignore the law when deliberating.  As you know, this is an issue that has been around forever and one about there seems to be a never ending debate.  There are organizations devoted to informing the public about nullification and there is literature warning about its dangers.  Now the topic is back in the news because the state of New Hampshire is considering enacting a law that would require judges to inform the jury of its power to engage in nullification.

As you would expect, not everyone agrees this would be a good idea.  An Op-Ed piece in the Chicago Tribune states, for example, that "[f]or judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so."

Over at Gawker, a short article explains how jury nullification can be double edge sword: "Jury nullification seems like a great idea when you imagine using it to free, say, low-level drug offenders who face long mandatory sentences that are fundamentally unjust. It seems like a terrible idea when you imagine racist southern white juries using it to railroad a black defendant just because they don't like his looks."  And then concludes that "[t]he notion that twelve randomly selected citizens are the most effective backbone of a fair justice system is already a bizarre one; to give them explicit instructions to ignore the law if they so choose seems like a dangerous step towards a legal system in which slick rhetoric, outward appearance, and expensive lawyers are more important than the actual law. Uh... even more so than now. If you're a consequentialist, it might be fair to support jury nullification under the assumption that striking a blow against the War on Drugs will do a great deal of good. But the long term consequences of this policy are impossible to know."

I am still undecided on this one...  I am sympathetic to the argument that says that attorneys should be allowed to argue nullification to the jury, but since nullification can be used for evil purposes as well as for good, I have always been afraid of the dangers of nullification.

For this reason, I think I would allow attorneys to decide if they would want to encourage the jury to engage in nullification (ie, I would not consider it improper for them to urge the jury to ignore the law), but I would not favor a statute that would mandate the judge to do so.  I think the decision on whether to present the option to the jury should be a case by case tactical decision left to the defense counsel.

ABA Journal Poll: Do you think character and fitness standards for the bar are too lenient or too harsh?

In light of the controversy generated by the case of Stephen Glass in California, The ABA Journal is asking its readers to comment on whether they think the character and fitness standards for the bar are too lenient or too harsh.  To post a reply or to read what others have written, go here.  Right now there are only three responses, but my guess is the poll will be open for about a week, so you can go back to read more comments in a few days.

Should lawyers be disciplined for criticism of judges?

Issues related to the freedom of speech of lawyers continue to hit the headlines.  A few days ago, I posted a comment on the on-going debate about whether an attorney should be disciplined for inappropriate and offensive comments about another lawyer.  I have also posted on the question as it relates to the limits on comments about judges (see here).  I am writing about that second question again just to point out that A Public Defender has posted his own comments (here) on whether attorneys should be disciplined for criticizing judges.

How not to practice law (as a judge); and some thoughts on social media

I have not posted a "How not to practice law" story in a while, so here is a short one from today's headlines, as reported by Res Ipsa Loquitur:

Judge Linda D. Schoonover appears to have a different concept of a “friend of the court” party. The Seminole Circuit judge has been removed from a divorce case where she tried to “friend” one of the litigants, Sandra Chace. Chace declined on the advice of counsel to be a friend of Judge Schoonover. Her lawyer says that Schoonover responded with retaliation against her in a type of “scratch a Friend find a Foe” ploy. The judge proceeded to shift most of the marital debt in her divorce to Chace and giving her husband, Robert Loisel Jr., a larger alimony award. Now Schoonover’s colleagues have overturned her order that denied Chace’s motion for disqualification. The panel found that “a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor.” The panel held that “The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case, or risk offending the judge by not accepting the ‘friend’ request.” 

Clearly, the judge should be disqualified.  The court got that part right.  However, the incident raises a couple of other questions in my mind.

First, should the judge be disciplined?  Assuming all the allegations are true, she exercised incredibly bad judgment which, in my opinion, raises a question as to her ability to serve as an impartial judge.  Some people have become so involved in Facebook they seem to forget that they (and Facebook) actually operate in the real world.

Secondly, there is the issue of competence.  The rules of professional conduct in almost every (if not all) jurisdictions now include as part of the measure of competence the duty to understand how to use "technology" and the duty to understand the risks involved in using it.  This, as you may recall, was the result of the debates about metadata a few years ago, but it also relates to the use of social media.

Finally, given that Facebook is causing so many problems, there is the more general question of whether states can do something to regulate or at least provide more guidelines for the proper and improper use of Facebook and other social media by lawyers.  A lot of attention has been devoted to the use of social media as marketing tools for attorney advertising but maybe not enough for the purely social aspects of social media.  Last year, the ABA issued an opinion on the use of social media by judges.  See my post on it here.

Not everyone agrees with the California Supreme Court regarding denial of admission to Stephen Glass

Yesterday I posted a comment on the decision by the California Supreme Court to deny admission to Stephen Glass.  (See here.)  Today I found a comment by Prof. Shaun Martin (San Diego) in which he argues the decision is wrong.  He makes a good argument for the position that Glass should have been admitted.  It is worth reading (here).

Among other things, he argues "Is Glass likely to be a sleazy lawyer? No. No way. In large part (if not entirely) because of his prior misdeeds."  And later concludes: "So if the relevant inquiry is (as it largely is) whether we believe that Glass will be a good and proper lawyer, who'll faithfully protect the interests of his clients, I think the answer's pretty clearly "yes"."

As I discussed in my previous post on the case, the key question in these cases is whether evidence of past conduct is a reliable indicator of future conduct.  I know there is some research on this, but it is limited and I am not sure how much we can learn from it.  If there was reliable research that helped answer the question with some degree of certainty then I would be fine relying on that answer.  However, absent that, all we have is the human perception of those passing judgment on the conduct.  They may be right or they may be wrong, but that is what we have.

Admission to the profession by motion?

As reported in the Legal Ethics Forum:

The ABA Journal is running a story this month that is rather critical of states that have no admission by motion rule or have procedures that are more restrictive than those contained in the Model Rule.  

As some readers may recall, the ABA Commission on Ethics 20/20 successfully proposed a modest liberalization of the Model Rule, which now allows lawyers to gain admission by motion after three, rather than five, years of practice.  The Commission also successfully proposed a resolution calling for states that have not adopted the Model Rule to do so and for states that have admission by motion procedures to delete requirements (like reciprocity provisions) that are more restrictive than the Model Rule.

Professor Andrew Perlman, who served in the ABA Commission 20/20, is quoted in the article saying that restrictions beyond those contained in the Model Rule (such as reciprocity provisions) “serve no public policy purpose.  In my view they are indefensible from the standpoint of public and client protection and should be eliminated.”

Should an attorney be disciplined for comments about another lawyer in a blog?

As we all know, the practice of the profession is heavily regulated and part of that regulation includes limits on our freedom of speech.  However, that does not mean that attorneys do not have the right to express their opinions, including their opinions about other lawyers.

As reported in a number of blogs, a law professor from the University of Denver has filed a complaint with the Illinois disciplinary authorities based on the fact that a certain Illinois lawyer has been engaging in what she considers cyber-harassment (or cyber-bullying) by leaving insulting, racist and sexist comments on her blog and other blogs.

I have not seen all the actual comments the professor is complaining about and maybe if I did I would change my mind, but from what I have read about the allegations, I am skeptical that allegations of improper speech should be sufficient to support a disciplinary complaint and, if they are, I am troubled by the implications of such a complaint on the principles of freedom of speech.

There is no question that some of the comments cited in the various blog posts about this story are inappropriate, and many are quite offensive, but others are just exaggerated expressions of opinion meant to make fun of the work of law school professors.  (Some of the comments could very well have been about me and my work.)  Yet, I don't think that the comments, or more accurately, the conduct of posting the comments, should be the basis for disciplinary sanctions.

(If you want to pause now and look at the blog posts in which the professor explains her views and some of the comments to which she is responding, go here, here, here, here and here.  Otherwise, finish my post and come back to them later.)

As law professors, scholars and bloggers we put ourselves and our ideas out there for open criticism.  The fact that some of that criticism is done behind the protection of anonymity, the fact that some of the criticism is offensive, and the fact that sometimes we have no recourse to respond to the criticism should not allow us to ask the state to impose sanctions upon those who have exercised their right to criticize.

The rules of conduct in most states do recognize a duty not to engage in speech that is prejudicial to the administration of justice (a standard that is too vague also), but that standard is not at issue in this case.

The professor's effort to punish the attorney who criticized her threatens free speech and may result in a chilling effect on those who wish to engage in discussions whether in writing, in the classroom, on the internet or anywhere else.  The most basic principle underlying the notion of freedom of speech is that the state cannot punish someone for protected speech merely because someone might find the speech offensive.  That could be the result of the complaint at issue here, and that is why I think the request for sanctions is troubling.  If the state agrees with her, the precedent will diminish the freedom we now have as academics to engage our students in the discussion of controversial and important issues because of the fear that someone might be offended.

The controversy reminds me of Richard Delgado's work on hate speech and the possibility of recognizing a cause of action for damages inflicted by words - other than defamation.  It was an interesting proposal but it was very difficult to reconcile it with the principles of freedom of speech.  Similarly, in his works on hate speech he has argued for what some call a "responsible regulation" of speech.  Again, I understand the concern and I am sympathetic to the idea, but the problem is how to define what is responsible regulation.  And who will define that?  By definition, someone will have to decide what is acceptable speech and what isn't, and if that someone is the state... well, that is what the first amendment is there to prevent.

Neither the Illinois Rules of Professional Conduct nor the ABA Model Rules have a specific section on offensive speech, but both have clarified in the comment to rule 8.4 that manifesting bias by words may be considered misconduct if it is prejudicial to the administration of justice.  However, this is limited to circumstances where an attorney is "in the course of representing a client," as opposed to where the attorney is expressing his or her own biased opinions or world views.

Interestingly, the issue of whether an attorney can be disciplined for offensive speech is not new to Illinois, although in a different context.  If the case moves forward and if it reaches the state Supreme Court, it may give the Court the chance to address the question it did not address in 1999 when it decided not to review the denial of admission to practice to a white supremacist.  In that case, the Committee on Character and Fitness denied admission and the applicant appealed arguing that "the Committee’s use of his expressed views to justify the denial of his admission to the bar violates his constitutional rights to free speech."  The Supreme Court denied review thus avoiding the issue and not setting any precedent.  In a short but interesting dissenting opinion, however, one of the justices argued that the appeal raised a significant constitutional question that deserved explicit, reasoned resolution by the court. Unfortunately, the Court did not go for it.

Although the context is different, I think the issue is similar.  One of the issues discussed by the dissenting opinion in that case is the question of whether an applicant can be denied admission to practice for expressing views that would not subject a practicing lawyer to discipline.  The judge, thus, seems to imply that there is a strong argument that expressing racist views would not subject an attorney to discipline.

For more commentary on the freedom of speech implications of this case, you can check out:

Prof. Jonathan Turley's Res Ipsa Loquitur blog ("That does not sound like the basis of an ethics complaint.")

My Shingle (the "decision to file an ethics complaint against the commenter sets unspeakably bad precedent for bloggers exercising their First Amendment rights.")

Above the Law (I don’t see how it’s workable to sanction lawyers who say disgusting things online. Lawyers say racist, sexist things all time.)

Disbarring the Critics ("...disdain for the First Amendment by attempting to silence a critic, albeit an anonymous one, by using very general rules in the Rules of Professional Conduct...")

Having said all that, however, it is possible there is more to the story.  My comments (and those of the other blogs I linked to) are based on the assumption that the disciplinary complaint is based merely on commentary (speech), not on conduct.  The distinction is, of course, significant.  If the allegations are about conduct, particularly conduct that can be classified as criminal, then the issue is different and there would be a lot more support for the argument in favor of discipline.


UPDATE (July 21, 2014):   The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger. Even though I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions. If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different. However, it seems like the issue is now closed.