Supreme Court denies cert petition in Truvia v. Connick

Last month I wrote about the cert petition in Truvia v. Connick, the most recent in a series of cases from New Orleans on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages.  You can read my original post here.

I was hoping the Court would grant the petition and revise its view on the issue, but it was not to be.  I found out today that the Court denied the petition a week ago.  Here is a page where you can find links to the documents in the case.

Thanks to Prof. Joan (Shaun) Shaughnessy (Washington & Lee) for the update.

Another opinion on the duty to disclose client's death

Last month I posted a comment on a recent Illinois case on whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation.

About ten days ago, the Legal Profession blog reported on another opinion on the same subject.  In this one, an attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year.  The case is called Matter of Rosner and it is available here.

Better Call Saul

Anyone who knows me knows I like to watch legal themed movies and TV shows (and read novels too).  I have written reviews of some of those shows and movies here on the blog, and I often make references to, and show clips of, movies in class. 

The most recent TV show I have been watching is Better Call Saul which is a prequel to the very popular series Breaking Bad, focusing on lawyer Saul Goodman from that series (although one of the first things we learn in the new show is that Saul Goodman is not his original name).

I like the show, and I really like the blog The Legal Ethics of Better Call Saul by Nicole Hyland.  In the blog, Nicole discusses the ethical issues of each episode of the show in great detail. If you have been watching the show, you really ought to check out the blog.

Florida Bar considers three hot topics: multijurisdictional practice, a national bar exam and legal services by non lawyers

Talk about timing!  Tomorrow morning I am leaving town to go speak at a conference in Puerto Rico on the future of the regulation of the profession.  For my talk I used the title "Current Debates on the Regulation of the Profession" and in it I outline a few topics I think are the current (or next) "big things" in the field of professional responsibility.  In my opinion, these are: the possibility of allowing non lawyers to provide some legal services, the possibility of allowing lawyers to form partnerships with non lawyers or to get non lawyer investors, the possibility of a national bar exam and issues related to multijurisdictional practice.

So, while I was reading my notes one more time just a few minutes ago, the Puerto Rico Supreme Court issued an opinion on admission by motion (that underscores the debate on mutijurisdictional practice in the island) and the Florida Bar Association posted a podcast discussing these exact same issues!  The podcast appears below and you can listen to it by pressing on the play button, or by going here.   More proof that these topics are pretty "current", I guess.

On the need to make prosecutors accountable for their misconduct

Long time readers of this blog know how much I have argued over time that courts do not do enough to discourage misconduct on the part of prosecutors.  I am, of course, not alone in expressing this sentiment.  Here is a very good recent post in the "a public defender" blog on the subject.

California Bar issues opinion on whether attorney can refuse to disclose confidential information in support of motion to withdraw from representation

The California bar's ethics committee recently issued an opinion (Formal Op. 2015-192) attempting to clarify whether an attorney seeking to withdraw from a litigation for ethical reasons might have grounds for resisting a court order that would require the lawyer to disclose client confidences to a judge who wants more information before ruling on the motion.  Although it admits there is no on-point guidance in California, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive.  You can read the opinion here.  The summary reads as follows:

An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney - client relationship. In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera. To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders. Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed. Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client.

Podcast on lawyers and modern technology

The Legal Talk Network has a new podcast on lawyers and modern technology. You can listen to it by clicking on the play button below. If you can't see the button, you can go here.

Here is the description of the program:

As we’ve heard time and time again, many lawyers are averse to becoming knowledgeable about modern technology. Older attorneys often do not want to learn a computer-based management tool and feel as though they can hire someone to manage the security and encryption of their sensitive information. Often, even having a young lawyer in the firm can seem like a solution since they will most likely have grown up with a certain level of technology knowledge. But none of these are valid excuses to a proper level of technological education. The luddite lawyers need to face the ethical implications of their ignorance.

In this episode of The Digital Edge, Sharon Nelson and Jim Calloway interview lawyer and legal technology blogger Sam Glover about when technology became an issue for attorneys, how they can get in trouble due to ignorance, and what all attorneys need to know about hackers, cloud services, and the resulting ethical duties. First, Glover explains that lawyers are getting into trouble in the courtroom by not knowing about how technologies like Twitter work... Concerning cyber security, Glover discusses the many reasons lawyers cannot simply outsource technology knowledge. ... Simply put, you cannot avoid technology as a lawyer anymore. There are courses, blogs, webinars, books, and many other ways to become educated about legal technology.

Cert petition before the Supreme Court on whether exonerated defendant can sue New Orleans parish prosecutor's office, ... again

A new case has reached the Supreme Court on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages.  The case is called Truvia v. Connick and you can read the certiorari petition here.  (And, before you ask, yes, that is the same Harry Connick, whose office was involved in Connick v. Thompson and Smith v. Cain).

As you probably remember, in Connick v. Thompson, the defendant conceded that the prosecutor in the case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before his conviction was reversed. He sued and won a multi-million dollar verdict, but the Supreme Court, in a five-four opinion by Justice Thomas, reversed holding that there was no evidence of a deliberate indifference to the rights of persons or a pattern of similar constitutional violations.  The dissenters in the case argued the evidence was sufficient stating that "the evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record ...  reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical."  (It is now known that the DA's office’s failure to disclose exculpatory evidence led to the exoneration of at least twelve people since 1990.)

A year later, after listening to the oral arguments in Smith v. Cain, during which the justices discussed the history of misconduct at the same prosecutors' office, maybe the Court would have been ready to accept the fact that there was a pattern of misconduct.  However, that was not at issue in that case and the Court simply (and almost unanimously, Justice Thomas being the only dissenter) reversed the conviction because of the prosecutor's misconduct.

The new petition before the court involves two men who were exonerated after 27 years behind bars. After their convictions were vacated, the filed a complaint asserting claims under 42 U.S.C. § 1983 for constitutional violations arising from the prosecutors misconduct in not disclosing exculpatory evidence.  They argued (and presented evidence to support the argument) that the Orleans Parish District Attorney’s office had a policy and custom of withholding exculpatory evidence.  The lower court, however, ruled there was no triable issue of fact.  On appeal, the Court of Appeals for the Fifth Circuit affirmed.

I hope the Court grants the petition because it would give the Court the opportunity to define the level of evidence needed to support a claim for civil rights violations by prosecutors due to violation of the duty to disclose exculpatory evidence.  As the petitioners argue in their petition, this is an issue of national importance. 

In Connick v. Thompson the Court held that the single incident of prosecutorial misconduct in withholding exculpatory evidence was not sufficient to create local government liability.  The Court's conclusion was based on the finding that the plaintiff “did not prove a pattern of similar violations that would establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” The Court, however, did not indicate what would be sufficient to establish a "pattern of violations" sufficient for a finding of a “policy” or “custom” with regard to the failure to turn over exculpatory evidence. This is the question the Court will have a chance to answer if it grants review.

Also, as I have argued many many times in this blog, I think courts do not do enough to discourage misconduct on the part of prosecutors.  Recognizing a standard that could open the door to claims by exonerated defendants who suffer because of such misconduct would hopefully have a deterrent effect on what Judge Alex Kozinski recently called an “epidemic” of misconduct. 

UPDATE (March 30, 2015):  The Supreme Court denied cert.  Go here for the full story.

So you thought that the attorney-client relationship is a fiduciary relationship, right? Not in Delaware, apparently!

Raise your hand if you think the attorney client relationship is a fiduciary relationship.  Wait, not all hands are up?  How come?  Yesterday, a judge of the Delaware Superior Court for Sussex County issued an opinion in a civil case which concludes the notion of a fiduciary relationship is not what we have always been told.  The case is called Dickerson v. Murray and you can read the opinion here.

In this case, the plaintiffs hired a lawyer to represent them in a transaction.  Then, according to the plaintiffs, they suffered an injury as a result of the fact that the lawyer had a conflict of interest.  They sued for malpractice, but the complaint included a separate count for "conflict of interest." The judge found that the plaintiffs could support the cause of action for negligence, but dismissed the other cause of action.

The court dismissed the second count of the complaint because, according to the judge, “merely establishing an attorney-client relationship does not de facto give rise to fiduciary duties.”

That is news to me!

Pick any Professional Responsibility book and somewhere in it you will find an explanation of the basic principles of the attorney-client relationship.  And somewhere within that explanation you will find a statement that, in one way or another, defines that relationship as a fiduciary relationship.  Take for example Gillers, Regulation of the Legal Profession, page 2: "The lawyer's relationship to the client is fiduciary..." or Rotunda & Dzienkowski, Professional Responsibility, A Student's Guide, page 42:  "Lawyers are fiduciaries of their clients" and "[m]uch of the law of ethics is derived from, or related to, the law of fiduciaries." (emphasis in the original).

Yet, incredibly, the judge in this case concluded that “[a]n attorney must act in some capacity beyond the mere provision of legal services to owe actionable fiduciary duties” and the plaintiff “failed to allege factual contentions sufficient to prove the existence of a special trust, or relationship to substantiate a breach of fiduciary duty claim.”

The only factual allegation the plaintiff needs to allege to support the claim is that the defendant was the plaintiff’s lawyer, period.  The attorney-client relationship is, by definition, one based on special trust.  Again, citing Rotunda & Dzienkowski, "Clients have every right to expect trust from their lawyers, who are expected to act for the benefit of their principals, their clients."

The second count of the complaint was obviously argued poorly by calling it simply "conflict of interest" instead of arguing it as a separate claim for breach of fiduciary duty, but the court understood the allegation as such.  Thus, the problem is not that the judge did not understand the claim; the problem is that the judge does not understand the law.

As the court put it, "[i]n order to prevail on a breach of fiduciary duty action, unlike a negligence claim, Plaintiff must demonstrate the attorney-client relationship between the Defendants and Plaintiff was fiduciary in nature."  Yet, as any second year law student knows, a plaintiff does not have to "demonstrate" this.  It just is. 


Thanks to the Legal Profession blog for the link.

Court of Appeals for the Third Circuit declares unconstitutional NJ rule banning use of quotes from court opinions

Back in 2012, in response to a complaint filed by a judge, the New Jersey Supreme Court approved a new ruled that stated that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The attorney whose ad had initiated the whole discussion on the issue challenged the rule in federal court and the Court of Appeals for the Third Circuit recently declared the rule unconstitutional.  I agree with the result.  Lawyer Ethics Alerts Blog has a good summary of the case here.

Florida Bar Ethics Committee issues opinion on whether an attorney can advise clients to "clean up" a social media page before starting litigation

Legal Ethics in Motion is reporting that the Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations when advising a client to “clean up” the client’s social media pages before litigation is filed.  The opinion is only three pages long and you can read it here.   Agreeing with an opinion by the New York County Lawyers Association published in 2013, the opinion concludes as follows:

In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.

Yet another conviction reversed because of improper use of PowerPoint by prosecutor

Yesterday I wrote about cases on improper arguments by prosecutors, and in particular about the improper use of PowerPoint slide shows.   Amazingly, today, the Marshall Project is reporting on yet another case in which an appellate court has reversed a conviction because of improper use of PowerPoint.  According to the story, the prosecutor presented 250 slides to the jury and the court found problems with more than 100 of them. The post has photos of some of the slides.  The case is called State of Washington v. Walker and it is available here.

An update on improper arguments, and use of powerpoint, by prosecutors

Long time readers of this blog will remember the many cases I have reported over the years where courts had to decided whether to reverse a conviction because of improper arguments by prosecutors (usually during closing arguments).  Many of these cases involved prosecutors making references to facts not in evidence, expressing their personal opinions or using inflammatory rhetoric.  Some cases involved prosecutors being more creative, like the case where a prosecutor performed magic tricks for the jury and the one where a prosecutor used a big jigsaw puzzle with one piece missing to suggest to the jury that they could "see the picture" (or "know the truth") even though they did not have all the pieces of the puzzle. Sometimes courts have reversed the convictions and sometimes they have criticized the conduct but not reversed the conviction.

The Legal Profession blog has a note on the most recent example here.  It involves a case where the conviction (for the murder of four police officers) was reversed because the prosecutor misstated the law to the jury five times during closing argument, and then again during the rebuttal argument.  Although the court easily finds that the prosecutor's statements were improper, and at one point states that "the misconduct by the State is particularly egregious",  it does not attempt to determine whether they were the result of negligence, incompetence or intent and does not make a recommendation for sanctions.  Once again, as I have criticized time and time again, the court does nothing to deter the type "egregious" conduct that it complains about. 

Interestingly, there was another aspect of the prosecutor's presentation to the jury that the court commented on.  The prosecutor used a "slide show" (presumably something like PowerPoint) in which it showed the jury the improper statements. 

This is interesting because the use of PowerPoint has attracted some attention lately. The Marshall Project has an interesting post on this new trend.  According to the article,

At least 10 times in the last two years, US courts have reversed a criminal conviction because prosecutors violated the rules of fair argument with PowerPoint. In even more cases, an appellate court has taken note of such misconduct while upholding the conviction anyway or while reversing on other grounds ... . Legal watchdogs have long asserted that prosecutors have plenty of ways to quietly put their thumb on the scales of justice ... Now they can add another category: prosecution by PowerPoint. “It’s the classic ‘A picture is worth a thousand words,’” said Eric Broman, a Seattle attorney who focuses on criminal appeals. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”

The article explains how PowerPoint has been used in many of these cases and includes photos of the more problematic slides.  You can read the full article here.

Former prosecutor sues DA's office claiming he was fired for refusing to act unethically

A man who worked for several years as a prosecutor in Corpus Christi, Texas is suing the District Attorney's office arguing that he was fired because he refused to act unethically. 

According to this story aired in Action News 10 and published here, the prosecutor says he lost his job for following his duty under the law.  According to the complaint (as explained in the story), when the prosecutor uncovered a witness who had the potential to help someone he was prosecuting, his bosses told him not to share the information with the other side.  Instead, the prosecutor called the State Bar of Texas for an opinion which confirmed he had a duty to disclose the information.  Following his duty, however, the prosecutor told his supervisors he was going to disclose the witness and was fired the morning of the trial.

Bar counsel taking plea deals to avoid disbarment? What would you do?

 Mike Frisch (Georgetown) who runs the Legal Profession blog has posted a great question: 

You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.

The presumptive sanction for such misconduct in your jurisdiction is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.

Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred. Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.

You know (1) that a fully litigated case might take five years or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct. That happy event is likely at least two to three years away.

So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.

Do you take the deal if your system gives you the authority and responsibility to do so? If your system does not permit a consent disposition under these circumstances, is there something wrong with your system? 

Please go here to post your comments on this question.

As for me, I think I would take the deal because under the circumstances it would likely result in the equivalent of permanent disbarment (given the attorney's age and plans to retire).  Others might disagree and I am willing to be convinced I am wrong...

To me, the worst part of the scenario is the fact that disbarment is only the equivalent of a five year suspension.  If it were up to me, disbarment would always be permanent. 

Four things the next attorney general needs to know about the indigent defense crisis in the U.S.

The Sixth Amendment Center, a non-profit organization founded to assist states and local governments in meeting their constitutional obligation to provide competent counsel to the indigent accused, has posted an important comment on the indigent defense crisis in the United States.  You should read it here.

Top Professional Responsibility Stories of 2014

The Legal Ethics Forum has published its annual list of top stories for the past year here.  There is also a link to a list of stories on Canadian PR here.

NY State Bar issues opinion on whether an attorney can disclose confidential information in order to rebut comments by a client on a website

A couple of months ago, the New York State Bar Association Committee on Professional Ethics issued an opinion on an interesting question:  “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”

Holding that the "self-defense" exception to the duty of confidentiality does not apply to this type of case,  the Committee answered "no."  You can read the opinion (Opinion 1032 (10/30/2014)) here. The Committee finds that the "self-defense" exception should be limited to cases involving allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions.

The result seems sensible to me.  An ttorney would not be allowed to discuss confidential information about this matter with another person (say, someone who read the review and asks the attorney about it), so it would make sense the attorney can't disclose the information to the world at large.  In both instances, the attorney is not "defending" against an action by the client but addressing comments made by the client.  Take the website aspect out the equation and what you have is a former client talking to others and the attorney wanting to take a chance to give his/her side of the story to the same audience.  The attorney is free to do so, but can't disclose confidential information in the process.

The fact the comments are "published" (on the website) and can reach a much wider audience should not change the analysis.  The Committee suggested, however, that the answer might be different if client had somehow waived his expectation of confidentiality by posting the comments.  The Committee did not address that possibility because question was not presented by the facts before the committee. 


h/t The Lawyers Ethics Alert Blog

NY Times and ABA Journal on the interview with Robert McCulloch

Yesterday, I commented on the recent interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri, in which he seems to admit to having used perjured testimony.  Today, the New York Times and the ABA Journal picked up the story (here and here).  Both mentioned the fact that McCulloch admitted to allowing a certain witness to testify even though he "was sure" she was not telling the truth.

Again, if the prosecutor was "sure" the witness was not telling the truth, then why is allowing her to testify not a violation of the duty not to present false evidence?   Is saying that he was sure she was lying the same as saying he "knew" she was lying?  Or, is saying that he was sure simply saying that he strongly suspected that the witness was lying, but did not actually know it?

If it is the former, he admitted to violating the rules.  If it is the latter, he did not. 

Federal District judge finds that certain aspects of the Florida rules regarding advertising violate First Amendment

Almost exactly one year ago, I reported on a challenge to the advertising rules in Florida (here).  Coincidentally, just a few days ago, the Lawyers Ethics Alerts blog reported that a Federal Southern District Judge issued an opinion (apparently in a different case) granting summary judgment in favor of those challenging the rule (and against the Florida Bar) and enjoining the Bar from enforcing it. The case is Robert Rubenstein v. The Florida Bar. You can read the order/injunction here.

Did the St. Louis County prosecutor admit to a violation of the rule regarding perjury?

Below you will find a video of a radio interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri.  The interview is interesting for many reasons, but the part that really caught my attention was the discussion about the possibility that some of the witnesses committed perjury.

This discussion starts at the 9 minute mark of the recording.  The interviewer asks "Why did you allow people to testify in front of the grand jury in which you knew their information was either flat-out wrong, or flat-out lying, or just weren't telling the truth?" In response, McColluch is vague as to whether he agrees with the premise of the question (that he knew some of the witnesses were not telling the truth), but later he specifically says it was clear some of the witnesses were not telling the truth and, further, admits that he would not normally use witnesses like those - that he did that specifically for this one case. Later he adds that he was "absolutely sure" that some witnesses lied under oath, but that he would not seek perjury charges (at minute 16:15 or so).

Was that an admission that he knowingly presented false evidence/perjured testimony?

Are the rules related to grand juries so different that they allow the knowing use of false evidence in an effort to have the jury assess credibility?  That is how McCulloch tries to explain his conduct. He states that "I knew that no matter how I handled it, there would be criticism of it. So if I didn't put those witnesses on, then we'd be discussing now why I didn't put those witnesses on. Even though their statements were not accurate. So my determination was to put everybody on and let the grand jurors assess their credibility, which they did. ...I wanted to put everything on there. I thought it was much more important to present everything and everybody, and some that, yes, clearly were not telling the truth. No question about it."

If the prosecutor was so concerned with how "we'd be discussing now why I didn't put those witnesses on," let try this on for size: How about stating "because I have an ethical obligation not to put those witnesses on the stand.  Those witness are lying and the system can't function if we allow prosecutors to knowingly use false evidence."  That wouldn't be so difficult, would it?

I understand the prosecutor's decision to allow the witnesses to testify if he merely believed, but did not know, that they were lying. That essentially means he thought they had poor credibility and that it would be better to let the jury assess that credibility.  Allowing witnesses to testify when you have doubts as to whether they are telling the truth (as long as there is no knowledge) is not a violation of the rules.  But the prosecutor here used different language. He essentially said he knew they were lying. Once you have knowledge, the rule is clear.

Maybe the prosecutor meant the former but said the latter.  Otherwise, I think he admitted to using false evidence. I should clarify that this is not an admission of suborning perjury because suborning suggests he encouraged the witness to lie. Here what he seems to admit to is allowing someone to testify falsely when he knew they were lying. That is not suborning perjury but it is knowingly using false evidence which is a violation of Rule 3.3.

In the end, the question is whether the comments should be interpreted to mean he knowingly violated the rules or that he merely had doubts as to the credibility of the witnesses and allowed the jury to decide, which would not be a violation of the rules.  

Here is the video:

Richard Zitrin on what's going on in California

Richard Zitrin (UC Hastings) has published a column in The Recorder on what has been happening in California.  As you know, not too long ago, the state's supreme court rejected a proposal to substantially change the state's rules of professional conduct.  This was followed by the dismissal of a member of the Board of the State Bar, who followed up with a lawsuit.  It is quite an intriguing story.  You can read the article here.

Debate on the need for special prosecutors

A couple of days ago I posted a link to an article discussing prosecutorial discretion and what The New York Times called a "prosecutor's inherent conflict of interest" in cases that involve the possible indictment of police officers.  I also posted a link to a discussion in the Legal Ethics Forum on whether the prosecutor in Ferguson, Missouri had a conflict of interest.

As part of that discussion, many are calling for the use of special prosecutors in cases involving police officers.  The New York Times' Room for Debate has published five short comments on this issue here.

On using the phrase "and associates" when in fact the attorney does not have any associates

I have mentioned in the past that the use of the phrase "and associates" in a firm name can be found to be misleading when, in fact, there are no associates.  I doubt a lawyer would be sanctioned just for that reason, but it has been discussed as a violation of the rules in cases where the attorneys violated a number of rules.  For example, see Virginia State Bar v Head.

In that same context, Eric Turkewitz of the New York Personal Injury Blog is reporting that a recent case in New York listed the use of "and associates" as a violation of NY rule 7.5, as part of a list of violations discussed in the case.  The case is Matter of Cardenas and you can read it here.

California joins Massachusetts and Georgia holding the intra firm communication is privileged in case against the firm by former client

Back in July 2013, the Massachusetts Supreme Court held that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by one of the firm's clients are protected from disclosure to the client by the attorney-client privilege.   Shortly after that, Georgia issued an opinion agreeing with this position.  A strong debate followed (see here and here).  Oregon was next, and the debate continued.

And now, California Supreme Court has joined the list of jurisdictions recognizing the applicability of the privilege:  "The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications."  The decision is called Palmer v. Superior Court and you can read it here.   Go here for a little more information.

Attorney sues disciplinary board alleging the board has been engaging in unethical conduct

In an interesting turn of events, the Legal Profession blog is reporting that two Nashville lawyers are suing the Tennessee ethics board for what they call ethical violations and a cover-up.

Article on prosecutorial discretion

Here is an interesting article on prosecutorial discretion called Prosecutorial Discretion Under Fire: The Common Thread in the President’s Executive Action on Immigration and the Non-Indictment in the Michael Brown Case by Michael C. Dorf (Cornell). You can also listen to the article here (press the "play" triangle button). 

New York Times article on what it calls a prosecutor's "the inherent conflict of interest"

About two weeks ago, I posted a link to a comment on whether the prosecutor in Ferguson, Mo., had acted unethically because of a conflict of interest.  See here.  Yesterday, the New York Times published an editorial on the issue.  It starts as follows:

It is a long-established and basic reality of law enforcement in America: Prosecutors who want an indictment get an indictment. In 2010 alone, federal prosecutors sought indictments in 162,000 cases. All but 11 times, they succeeded.

Yet the results are entirely different when police officers kill unarmed civilians. In those cases, the officers are almost never prosecuted either because district attorneys do not pursue charges in the first place or grand juries do not indict, as happened most recently in Ferguson, Mo., and Staten Island.

There are various explanations for this, but the most obvious is the inherent conflict of interest that exists for prosecutors, who rely heavily on the police every day. Cops arrest suspects; they investigate crimes; they gather evidence; and they testify in court, working essentially in partnership with prosecutors.

Whether or not bias can be proved in a given case, the public perception of it is real and must be addressed.

The best solution would be a law that automatically transfers to an independent prosecutor all cases in which a civilian is dead at the hands of the police. This would avoid the messy politics of singling out certain district attorneys and taking cases away from them.

You can read the full article here.

Reversal of conviction because prosecutor used perjured testimony

The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.  For more details go to the Legal Profession blog.

New study on Brady violations

About two weeks ago, the National Press Club in Washington, DC (NACDL), released a new report, called "Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases."  According to the President of the NACDL "This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person."   You can download a copy of the report by clicking here.  You can find more information on the report here.

The problem of inflating billable hours

Here is a good short comment by Prof. Ronald Rotunda on the issues raised when lawyers overbill clients.

The most recent edition of The Professional Lawyer

The new issue of the ABA Professional Lawyer is available here  (for a limited time).  It includes the following articles:

Unfinished Business: The Legacy of Brown v. Board of Education
William C. Hubbard

Indie Lawyering: A New Model for Solo and Small Firm Practice
Lucille A. Jewel

The High Cost of Efficiency: Courthouse Tech and Access to Justice
Eric J. Magnuson, Nicole S. Frank

The Twenty-First Century Lawyer’s Evolving Ethical Duty of Competence
Andrew Perlman

The Law Firm Records Burden: Tips for Clearing the Warehouse
Janis M. Meyer

But I’m Just a Lawyer: Do Cloud Ethics Opinions Ask Too Much?
Stuart L. Pardau

Spectacular incompetence

I have used the phrase "spectacular incompetence" before, but this case may just be the worst.  At the time of the year when many blogs are preparing their "top ten" lists for the end of the year, I am wondering if this is the number one case in the "funny if it wasn't so sad and serious" misconduct category.

I am referring to the recently reported case in which a lawyer was disbarred for his incompetent representation of a client in a death penalty case.  The attorney had no prior experience in death penalty cases. He devoted little effort to preparing the case and had not tried a murder in twenty years. He didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders.  He was unfamiliar with ABA guidelines for trying capital murder cases. At trial, he informed the jury his client had previously been convicted of voluntary manslaughter, even though prosecutors agreed to a stipulation that the client had a prior felony conviction without further details.  Most bizarre is the fact that the attorney showed up to oral argument before the court dressed as Thomas Jefferson.

The court had little difficulty finding the attorney had provided ineffective assistance of counsel and eventually reversed the conviction.

The case is discussed in a public defender (which has photos of the attorney in his distinctive attire"), the Legal Profession blog and the ABA Journal.

Here is a video of the oral argument in question.  The attorney's argument starts at the 22:30 mark, where the attorney tries to explain the significance of the outfit.  Judge for yourself.

NY Times article on the need for a system to provide attorneys to those who can't afford one for civil law cases

I have written before about the debate on whether the state should provide attorneys to litigants who can't afford them in civil litigation.  (Go here for a note describing Illinois' approach to the issue, and here for a link to a comment on the subject.)

Recently, the issue was back in the news again because The New York Times published this article.

Failure to communicate plea bargain offer can constitute ineffective assistance of counsel

The South Carolina Court of Appeals has found ineffective assistance of counsel in a case where the defendant was not advised of a ten-year plea offer before going to trial and getting twenty.  The case is called Chico Bell v. The State of South Carolina and you can read the opinion here.

Did the prosecutor in charge of the grand jury in Ferguson act unethically?

As we watch the events in Ferguson, Missouri unfold, here is a short comment by Prof. Monroe Freedman arguing the prosecutor in charge of the grand jury acted with a conflict of interest.

In an unrelated comment, another author argues the case should have been set for trial saying..

Ferguson prosecutor Robert McCulloch delivered a long-winded, smirking speech blaming social media, journalists, Ferguson residents, and pretty much everyone else who isn't Darren Wilson, for Darren Wilson shooting and killing 18-year-old Michael Brown. It took McCulloch 10 minutes of hectoring before he revealed the grand jury had found no probable cause to indict Wilson, and the rest of the 45-minute speech, in which McCulloch seemed to be presenting evidence in Wilson's favor, felt more like defense attorney's argument than a prosecutor's. The very length of McCulloch's rambling statement, really, and the amount of evidence he felt compelled to argue against, was in and of itself a fair argument that the case should have gone to trial.

New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors' office backs them up

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No. 469).  You can read the full opinion here.  The summary speaks for itself:

A prosecutor who provides official letterhead of the prosecutor’s office to a debt collection company for use by that company to create a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatens prosecution, when no lawyer from the prosecutor’s office reviews the case file to determine whether a crime has been committed and prosecution is warranted or reviews the letter to ensure it complies with the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a).

South Carolina Supreme Court recognizes the right of a beneficiary of a will or trust to sue a lawyer for malpractice

About ten days ago, in a case called Fabian v. Lindsay, the South Carolina Supreme Court recognized a cause of action, in both tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client's intent. The Court added that "[r]ecovery under either cause of action is limited to persons who are named in the estate planning document or otherwise identified in the instrument by their status. Where the claim sounds in both tort and contract, the plaintiff may elect a recovery."  You can read the opinion here.

More comments on California's rejection of a proposal to adopt the Model Rules

As I reported recently (here), the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct. As you would expect, the decision has generated much commentary (see here, here and here).  Adding to the discussion, over at the Legal Ethics Forum now you can find a very good discussion of the issues.

Podcast on ethical issues about social media

Here is another podcast on ethical issues related to social media.  If you can't see the play button below, you can listen to the program here.

ND State Bar opinion finds use of medicinal marijuana is a violation of the rules of conduct even if the use is legal according to state law

Legal Ethics in Motion is reporting on an interesting Advisory Opinion issued a couple of months ago by the Ethics Committee of the State Bar Association of North Dakota that concludes that a lawyer licensed in North Dakota who uses medical marijuana in a state that authorizes its use, violates North Dakota Rule of Professional Conduct Rule 8.4(b).  You can read the short opinion  here.  (Opinion 14-02, issued August 12, 2014)

I don't agree with the opinion.  Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]”  Why does this rule apply if the lawyer is participating in a legal activity?  And even if it is illegal, how does using marijuana for medicinal purposes reflect adversely on a person's honesty or fitness?  It is one thing to say that a lawyer is unfit because he or she is suffering from a the medical issue that is so debilitating it prevents the lawyer from meeting his or her duties, but that is not what the opinion says.

The basis for the conclusion is that the use of medicinal marijuana has not been legalized by federal law.  Based on this reasoning, a lawyer (indeed, anyone at all) who uses medicinal marijuana even in a state where it is legal to do so, could be found to be in violation of federal law.  And, due to that possibility, a lawyer should not engage is conduct that is potentially a violation of federal law.

I understand the logic, but I am still not convinced, particularly since I am not convinced that the "crime" is the type of crime, by itself, that reflects adversely on honesty or fitness.  According to the Committee's logic all crimes reflect adversely which makes the language of the rule superfluous.

Comments on possible non lawyer ownership of law firms

Whether law firm ownership should be limited to lawyers is one of the most important debates going on in the American legal profession today.  Below you will find a short comment posted in the The Legal Talk Network on the subject, which is described as follows:

Legal Talk Network producer Laurence Colletti interviews consultant George Beaton about how client buying behavior was affected by the deregulation of ownership of law firms in Australia. Beaton discusses conflicts of interest, access to justice, client satisfaction, and the range of services under an outside ownership model for a law firm. Additionally, he talks about professionalism in the legal field and the role of an oversight model such as a Bar Association. Dr. George Beaton is a partner in Beaton Capital, an associate professor at the University of Melbourne, and authored NewLaw New Rules, a ground-breaking narrative on the changes sweeping the legal services industry.

If you can't see the "play button" below, you can listen to the program here.

Puerto Rico Supreme Court invalidates statute that made Bar Association membership mandatory

Last week the Puerto Rico Supreme Court issued an opinion resolving a debate that had been hanging over the legal profession in the island for decades: whether it is constitutional for the state to mandate that attorneys join the Puerto Rico Bar Association. The case is called Rivera Schatz v. Estado Libre Asociado, and you can read the opinion (in Spanish) here.

The background story is long, but I will summarize it as best as I can. In 1932, the Puerto Rico legislature enacted a statute creating the Puerto Rico Bar Association (known in Spanish as the Colegio de Abogados) and making membership mandatory for all attorneys. Failing to pay the Bar Association's dues was, thus, a sanctionable offense. That statute was challenged at some point in the 1980s by about 100 attorneys who refused to pay the membership dues arguing that the "integrated bar" requirement was an unconstitutional infringement on the attorneys' rights to freedom of speech and association.

As a result of that long litigation in the 1980s (Schneider v. Colegio de Abogados) a system was adopted for Bar Association members to specifically designate what their fees could be used for. Once this was in place, the Bar Association could claim the members were not in a position to claim their constitutional rights to free speech and association were violated.

The saga did not end there, of course.  The next chapter began in 2009 when the legislature amended the 1932 statute to eliminate mandatory bar membership as a requirement to practice law.

Arguing that the legislature had infringed on the Supreme Court's "inherent power" to regulate the profession, the Bar Association sued to challenge the new law. This challenge was decided in 2011 when the Court denied the Bar Association's cert petition with an order holding that the legislature's decision to eliminate mandatory bar membership did not infringe on the Court's inherent power to regulate the profession and was not in violation of the principle of separation of powers.

Three years later, the legislature (now controlled by a different political party) enacted yet another law restoring mandatory Bar Association membership, and, as you would expect, that law was then challenged by opponents of an integrated bar. It is this challenge that the court decided last week.

Given its decision against the Bar Association in 2011, it is not surprising that the Court again decided against a mandatory integrated bar. What is surprising, though, is that it does so by adopting the position it rejected back then. In the new opinion, the Court concludes that the adoption of a statute constituted an infringement on its "inherent power" to regulate the profession and a violation of separation of powers.

Of course, the question of the constitutionality of an integrated bar is not unique to Puerto Rico. In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

This last point is important for the Puerto Rico situation because the underlying fight has always been about the Bar Association's use of its funds to support causes some of the members find objectionable.

For much of its history, the Puerto Rico Bar Association has been thought of as a "liberal" organization which has supported causes like women's rights, environmental protection, access to legal services and which has expressed opposition to the United States use of parts of the island for military operations, and so on. Lawyers who have opposed the integrated bar concept have long objected to the Bar Association's involvement in what they consider to be political questions, arguing it uses dues money to advance positions the members do not necessarily agree with.

Interestingly, how to deal with the opposition to the use of the funds was one of the questions that the Schneider case in the 1980s actually decided.

But the story ends, for now at least, last week when the Supreme Court should be free to choose whether to join the Bar Association.

I wonder if the Bar Association will take the chance to go to the US Supreme Court and ask it to consider what it left undecided in Lathrop.

Stay tuned....

Supreme Court of Puerto Rico rejects proposal to adopt ABA Model Rules

After writing about the recent decision by the California Supreme Court to reject a proposal to adopt the ABA Model Rules, I realized that I had not commented on the fact that the Supreme Court of Puerto Rico had recently decided to do the same thing.

Even though it was approved in 1970, the current Code of Professional Conduct in Puerto Rico is essentially a translated and amended version of the ABA Canons of 1908 with some influence from the ABA Model Code.  And, even though the ABA abandoned the Model Code in favor of the Model Rules in 1983, Puerto Rico has not made any changes to its Code since it approved one amendment in 1980 (to update the canon regarding advertising).

In 2005, a Commission appointed by the Puerto Rico Bar Association to draft a new Code presented its proposal to adopt a new set of rules based on the ABA Model Rules.  However, for some unknown reason, the Puerto Rico Supreme Court sat on the proposal for eight years and then, without explanation, announced in an order last December that it rejected the proposal in its entirety. You can find the Court's order here (in Spanish).

Surprisingly, at the same time the Court also announced that there was another project that had already been prepared by the Judicial Conference.  You can find that project here.  The Court said it would consider the project this year, but given that it took it eight years to consider the previous one, it is difficult to know what to expect.

The new project is a very odd combination of materials based on sources from the ABA Model Code, the Model Rules and Codes from other countries.  It has sections called "canons" which read like they are meant to provide inspiration rather than regulation (like the "ethical considerations" of the Model Code) and sections called "rules" that attempt to provide more guidance for disciplinary matters.  In my opinion, the rejected project based on the Model Rules was much better, but it appears that one will not be revised now.

It remains to be seen what will happen.  There is a debate as to whether the new proposal is better than keeping the obviously inadequate current Code or whether the new proposal is so bad it should be rejected until a better one can be drafted.  When I first saw the documents, I felt that anything would be better than the current system, but the reporter of the recently rejected proposal to adopt the Model Rules almost has me convinced that it would be better to start from scratch.  The University of Puerto Rico Law School is considering putting together a conference on the subject and I have already agreed to be one of the speakers.  Get in touch with me if you want more information on this.

U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

About two months ago I reported (here) that the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

Now comes news that four days ago the Justice Department officially decided that federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

Here is a copy of the memo sent to all federal prosecutors.  The Lawyer Ethics Alert blog has more details here.

California Bar Pioneers Pre-Admission Competency Training for New Lawyers

About a year ago, the State Bar of California’s Board of Trustees charged the Task Force on Admissions Regulation Reform with “[e]xamin[ing] whether the State Bar of California should develop a regulatory requirement for a pre-admission competency training program, and if so, proposing such a program” for submission to the Supreme Court.” After studying this issue for a year, the Task Force on Admissions Regulation Reform released a report on June 24, 2013.  Legal Ethics in Motion has the full story here.  The report is available here.

Lawyers behaving badly

The headlines in today's ABA Journal online include the following stories:

Ex-judge gets 60 days and 6 months of house arrest for falsifying court records and prostitution

Lawyer who robbed 3 banks and shot state trooper gets 24 years

Ex-partner of law firm indicted, accused of aiding unlawful use of energy tax credits by clients

Judge apologizes for more than 200 sexually explicit emails sent from office

Disbarred lawyer who stole from his own mother and others gets 44 months in federal prison

What's going on?!

Better to ask for forgiveness or permission?

You may have heard the expression "better (easier?) to ask for forgiveness than to request permission" (or something to that effect), right?  Well, think again, if the question involves a disciplinary authority.  As reported by the Legal Profession blog:

An attorney who had been reinstated to practice on conditions admitted to violation of the conditions by handling criminal cases without supervision or malpractice insurance. He then sought to amend the conditions to allow for what he had already done. The Delaware Supreme Court denied the petition stating "The Court is troubled that the petitioner returned to private practice in a manner that violated the Court's Order in substantial, myriad ways without first seeking leave of the Court to modify the conditions of his reinstatement."

The story behind the California Supreme Court's rejection of the model rules

As I reported recently (here), the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct. As you would expect, the decision has generated much commentary including a short comment by my friend Richard Zitrin (UC Hastings) in which he describes the background history of the Court and the Commission which helps understand the recently announced decision.  You can read the article online now here (subscription may be required) or in print tomorrow at The Recorder.   For more commentary on the situation go here and here. 

Connecticut Appellate Court holds that there is no duty to disclose exculpatory evidence

About a week ago, the Connecticut Appellate Court addressed a very interesting question that I have to confess I had not thought about before.  Now I want to do some research to see how it has been approached in other jurisdictions.

The question is whether the state has an obligation to disclose exculpatory evidence to an attorney as part of a disciplinary proceeding.  In this case, an attorney was disciplined, but he later argued that he was entitled to a new trial because bar counsel allegedly suppressed evidence that may have disproved the charge.  The court however held that Brady v. Maryland does not apply in bar disciplinary cases, stressing that Brady‘s applicability is limited to criminal prosecutions.  However, the court also hints that the argument was irrelevant in any case because the attorney in the case had knowledge of the evidence that he accused bar counsel of suppressing.

The case is Smigelski v. Dubois and you can read the decision here.

New ABA Ethics Opinion on sale of practice

The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 468 – Facilitating the Sale of a Law Practice. Here's the summary:

When a lawyer or law firm sells a law practice or an area of law practice under Rule 1.17, the seller must cease to engage in the private practice of law, or in the area of practice that has been sold, in the relevant jurisdiction or geographic area. But the selling lawyer or law firm may assist the buyer or buyers in the orderly transition of active client matters for a reasonable period after the closing of the sale. Neither the selling lawyer or law firm nor the purchasing lawyer or law firm may bill clients for time spent only on the transition of matters.

You can read the full opinion here.

Better Call Saul!

In case you are not familiar with Saul Goodman, here is his website.  Check it out.  My favorite ad is the one called "Sue 'em now."

Machine intelligence and legal services

Some time ago I asked whether it was likely that attorneys could be replaced by machines or computer programs.  Here is another post (with links to more) on that subject.

Discipline for failing to correct client's affidavit when attorney finds out the client lied

The Legal Profession blog is reporting on a recent report and recommendation by the Illinois Review Board.  In a nutshell, the recommendation for sanctions is based on the fact that the attorney failed to take remedial measures once the attorney found out a client lied.  The client told the attorney he was a sole heir and based on that information the attorney filed an affidavit and some documents asking the client to be appointed as administrator of the estate.  At some point, however, the attorney realized the client had lied and that he was not the only heir.  The attorney, however, failed to correct the affidavit or to take other remedial measures regarding the client's perjury.

The notion of discipline for failing to take remedial measures regarding perjury is not surprising and I don't have a problem with the recommendation.  I wonder, however, if the Board cited the wrong rule in support of its decision.  It seems to base its recommendation on an alleged violation of Rule 3.3(a)(1) which imposes a duty to take remedial measures when an attorney comes to know the falsity of a fact the lawyer asserted.  In this case, the fact was asserted by the client.  

Read the full story here and here.

Comments on how disciplinary system does not work to protect the interests of those it is supposed to protect

The Legal Ethics Forum has a story on (and link to) a recent report that concluded the disciplinary system in Wisconsin is inadequate in a number of ways.  Mike Frisch, of the Legal Profession blog, has some thoughts on the same issue about the Washington DC system.  Mike's point is very interesting because it suggests the current system is apparently based on conflicting interests.  And, as I have said before in other contexts, I agree with him in that protecting the "dignity" of the profession should not be a standard used to make disciplinary decisions.

Comments on the Rules situation in California

A few days ago I reported that the Supreme Court of California rejected a proposal to adopt new rules based on the ABA Model Rules.  Here are a couple of comments on the situation in the Legal Ethics Forum and KafkaEsq.

Attorney ad: real or a parody?

Does anyone know if this ad is real or is it a parody?  If you can't see the video below, you can watch the video here.



UPDATE (10/7/14): I have been informed by someone who spoke to the attorney in question that the video is not an actual ad, but "takes" and "outtakes" from a number of scenes shot in the process of putting an ad together. It was not meant to be disclosed until the ad was finished but the attorney made the mistake of sharing with others who then posted the video to YouTube.

Supreme Court of Louisiana shows some common sense on what constitutes a misleading ad

In May of last year I criticized a decision by a Louisiana Hearing Committee recommending a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases.  Fortunately, just a few days ago, the Louisiana Supreme Court showed some common sense and rejected that recommendation.

But let's back up to the beginning of the story.  As you probably know rules of professional conduct typically ban lawyers from stating, or implying, that they are "specialists" in any particular field of law unless the lawyer can show he or she has actually been certified as such, and there are very few such specialty certifications.  For this reason, a number of jurisdictions have issued opinions disciplining attorneys who have stated in their ads that they "specialize in" a particular area of the law.

My problem with all this is that I see a clear distinction between claiming to be a certified specialist and simply using the English language verb "to specialize" in a sentence.  The verb, which, I looked up in the dictionary, means "to concentrate one's efforts in a special activity, field, or practice." You don't have to be certified to practice bankruptcy law and if an attorney's main area of practice is bankruptcy law he or she, in fact, specializes in bankruptcy relief. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.  Assuming it is true that this is their main area of practice, why bother spending time and money in a disciplinary process?

I made this argument back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here).

Thankfully, the Louisiana Supreme Court made the right decision and reversed.

In this case, called In re Kearney Soniat Du Fossat Loughlin, the attorney created a website to promote his law firm which contained a statement saying the firm is a "litigation firm specializing in maritime personal injury and death cases.” Based on this statement, the Office of Disciplinary Counsel (“ODC”) filed one count of formal charges alleging the statement violated several rules.

The matter proceeded to a formal hearing at the conclusion of which the hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases, although such a specialization has not been recognized or approved in accordance with the rules and procedures established by the Louisiana Board of Legal Specialization. Accordingly, although the committee found that there was no evidence of actual injury caused by respondent’s violation, and little potential for injury was shown, it recommended that the attorney be publicly reprimanded, and that he be required to attend a continuing legal education program on lawyer advertising. This recommendation was later affirmed by the disciplinary board.

On appeal, the Louisiana Supreme Court reversed, however, finding that the attorney's actions caused no harm to the public and that the attorney did not have a culpable state of mind.  Thus, the Court found that his actions did not rise to the level of sanctionable misconduct and dismissed the charges.  You can read the full opinion here.

This is the right result, although I wish the Court had clarified the notion of the "culpable state of mind" necessary for the conduct to constitute a violation of the rules.  I interpret the ruling to mean that claiming that one specializes in a certain area of the law is not sanctionable conduct unless it is shown that it was done with the intent to make people believe one has a specific "title", "degree" or "certification" of some sort.  In other words, with the intent to deceive or mislead the public.  Since simply stating a true statement using the verb "to specialize" as part of a sentence, without more, does not support that conclusion, the allegation in the case is not enough to support the imposition of discipline.  That's how I would have resolved the case, and how I hope the decision is interpreted in the future.

Comments on California Supreme Court decision not to adopt new rules

As I reported earlier today, the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct.  Kafkaesq has some comments here.  The Legal Ethics Forum has more here.

California Supreme Court rejects 14 years of work product from Rules Revision Commission; plans to start over

Very surprising!  Sounds like California wants to be the only state that does not follow the ABA Model Rules.  Go here for the story.

Texas Bar Ethics Opinion finds Texas rule on conflicts is more strict than Model Rule -- then (two years later) changes its mind (UPDATED)

In a recent opinion, the Texas bar's ethics committee found that a law firm must stop representing a litigation client if it hires a lawyer who formerly worked on the case as a law clerk at the firm representing the opposing party. Screening the tainted lawyer to prevent the sharing of any confidential information he learned in his prior employment won't enable the firm to continue representing the client.

UPDATE: 3-22-19:  However, two years later, in 2016, the opinion was withdrawn and replaced with a new one which concludes "Under the Texas Disciplinary Rules of Professional Conduct, a law firm is not required to withdraw from representing a client in a lawsuit if the law firm hires a new lawyer who, before becoming a lawyer, was employed as a law clerk for the law firm representing the opposing party in the lawsuit and in that capacity helped provide services to the opposing party with respect to the lawsuit, so long as the law firm screens the new lawyer from any personal participation in the matter to prevent the new lawyer’s communicating to others in the law firm confidential information that the new lawyer and the law firm have a legal duty to protect."

You can read the new opinion here. 

Under the Model Rules, a firm would be allowed to continue the representation of the current client if it screened the newly hired attorney.

How not to practice law: if you are a judge, show up drunk to preside over your cases

Need I say more?  The story is here.  It sounds like this was not a case of a judge being irresponsible, but of inability to control alcoholism.  In a case like that I think there is more need for help than for sanctions.  On the other hand, you can't trust a judge who can't be trusted to handle this problem.  I think a suspension and requirement to go for treatment would be an acceptable sanction.  What do you think?

UPDATE 11/10/14:  Legal Ethics in Motion has more on the story here.

Interesting oral argument before the Illinois Supreme Court on allocation of authority to make a decision and ineffective assistance of counsel

The Illinois Supreme Court heard an interesting oral argument today involving an allegation of ineffective assistance of counsel based on the fact that the attorney did not advocate for a position in favor of the client (defendant in a misdemeanor case).  One of the things that make the case interesting is the unusual circumstances that gave rise to the appeal.

At some point during the process, the prosecutor asserted a "bona fide doubt" as to the fitness of the defendant to stand trial.  Counsel for the defendant did not object.  Based on the state's statement, the court ordered an evaluation of the defendant.  On appeal, the defendant (represented by a different attorney) is now claiming that the trial counsel was ineffective because he did not object to the state's argument of unfitness.

During the oral argument, the justices ask good questions about whether the decision on what position to take as to the fitness of the defendant is one for the defendant or the attorney; whether it is strategic or substantive, etc.  In part, defense counsel argued that the decision belonged to the client because it involved more than mere "tactics."  Because this was a misdemeanor case, a finding of unfitness could result in the defendant remaining confined for a longer period of time than if found guilty.  Thus the decision on what position to take as to the fitness of the client affected the ultimate goals of the representation.  For that reason, the defendant is arguing that the attorney's failure to take her position that she was fit constituted ineffective assistance of counsel.  In contrast, the state argued that although the attorney may have had a professional responsibility duty, the failure to object did not amount to a violation of the right to effective assistance of counsel.

Another issue discussed by the parties is whether there was a need to request a guardian ad litem and whether the decision in Austin M., a case I have written about, applies to this case.

You can listen to the audio of the oral argument here or watch the video here.

Will you be replaced by a robot? or a computer program?

Lawyers are often asked by clients to review contracts prepared by others.  However, because this type of task is something for which you don't need a law degree, someone has come up with the idea to create a computer program to do it.

Enter "Legal Sifter", the computer program that aims to take your job as a contract analyst. The computer program is designed to "eyeball a contract, much in the same way that an experienced lawyer might if asked by a fellow attorney or a friend to have a quick look."  It scans documents and assigns them a score based on how favorable the terms are for the user. It also provides users with an explanation of the clauses and provisions in the document and suggests potential changes to provisions that are probably not in the user’s best interest.  Sounds promising, but will it displace lawyers?  I don't think so.  The program appears to offer some benefits for some users, but the complexity of many of the types of contracts lawyers are often asked to review is probably beyond its capabilities.  Computer code is no match for professional experience when it comes to complex legal issues and transactions.

Over at My Shingle.com, Carolyn Elefant discusses the issue in more detail.

ABA publishes Formal Opinion on duties of supervisory prosecutors

As you probably remember, in Connick v. Thompson and in Smith v. Cain the US Supreme Court was faced with allegations of misconduct by the District Attorney's Office in New Orleans including allegations that the DA had failed to train prosecutors about their duty to disclose exculpatory evidence.  Meanwhile, many other courts continue to overturn convictions due to prosecutorial misconduct.  (Go to the prosecutors label on this blog and scroll down for more.)  You would think that prosecutors would know their duties, but either because they don't or because they don't care, prosecutorial misconduct continues to be an epidemic.

In an attempt to provide some guidance, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 467, addressing the managerial and supervisory responsibilities of prosecutors.  The summary of the opinion is as follows:

Model Rules 5.1 and 5.3 require lawyers with managerial authority and supervisory lawyers, including prosecutors, to make “reasonable efforts to ensure” that all lawyers and nonlawyers in their offices conform to the Model Rules. Prosecutors with managerial authority must adopt reasonable policies and procedures to achieve these goals. Prosecutors with direct supervisory authority must make reasonable efforts to ensure that the lawyers and nonlawyers they supervise comply with the Rules. Where prosecutors have both managerial and direct supervisory authority, they may, depending on the circumstances, be required to fulfill both sets of obligations. The particular measures that managerial and supervisory prosecutors must implement to comply with these rules will depend on a variety of factors, including the size and structure of their offices.

Of particular interest, the opinion states that supervisors in prosecutors' offices should create a “culture of compliance” by emphasizing ethical values and obligations during the hiring process, providing incentives such as positive reviews, promotions and raises for ethical behavior, protecting and rewarding lawyers who report misconduct up the ladder within the office and by internally disciplining those who violate professional conduct rules.

I have nothing against all these suggestions and I should not be surprised by them since the reason we need to stress a need to "create" a culture of compliance with ethical rules is that there seems to be a history of disregard for them.  But it always bugs me to know there is a need to remind prosecutors and their supervisors that they have a duty to be ethical.

Is "dignity" a proper standard for judicial office campaigns?

The Legal Profession blog has a story here.  In short, the South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that a judicial candidate can advertise in a movie theater as long as it is done "with dignity," a reference that apparently would apply to both the ad and the movie itself.  I posted a comment to the story and got some replies.  Go here to check it out.

My comment is that I am always troubled by the use of "dignity" in any decision judging speech by attorneys. It seems to me the use of "dignity" as a standard goes against the principle that the First Amendment stands to protect speakers against the state imposing sanctions based on the fact that some might find the speech offensive.  Granted, that principle was significantly weakened by the US Supreme Court's decision in Florida Bar v. Went for it, but the other cases in the long line of attorney speech cases still stand, including Zauderer, where the court said that regulating the dignity of the illustration of the IUD was not a good enough state interest.

New York State Bar Association report on social media ethics guidelines

As you know, the Model Rules were amended recently to recognize that an element of competence is knowledge about "technology" which includes computer programs and the use of social media. In addition, some bar groups have also issued reports or opinions on social media.  For example, I recently reported that the Philadelphia Bar Association’s Professional Guidance Committee issued an opinion on the ethics of advising clients on the use of social media.

But "social media" includes so many different things and its use can have so many implications that more guidelines are needed.  Fortunately (at least for lawyers in New York), earlier this year, the New York State Bar Association issued a report called "Social Media Ethics Guidelines" (available here.)  The guidelines discuss topics ranging from attorney advertising and furnishing legal advice through social media to ethically communicating with clients and researching prospective and sitting jurors.  Needless to say, these and other guidelines will continue to evolve in order to keep pace with technological developments.

Kentucky Supreme Court finds that it is unethical to require a defendant to waive right to claim of ineffective assistance of counsel as part of plea bargaining

As you probably know, it is not uncommon for convicted criminal defendants to challenge their convictions alleging that their lawyers did not provide effective assistance of counsel, and that sometimes the ineffective assistance related to the attorneys' inadequate counseling on whether the defendant should agree to a plea offer.  However, apparently prosecutors in federal court often require defendants to give up that right in order to have a favorable plea bargain.  In other words, it has been reported that often the plea offer is conditioned on the defendant waiving the right to challenge the attorney's performance as ineffective as part of attempts to seek post conviction relief.

Yesterday, the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

The opinion was the result of a request by the prosecutors of the office of the United States Attorneys for the Eastern and Western Districts of Kentucky to review the merits of an advisory ethics opinion by the Kentucky Bar Association (Ethics Opinion E-435), an ethics advisory which held that the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  After a very well reasoned discussion of the opinion, the Court concluded that it agrees with the Bar Association and that it is unethical for prosecutors to include a waiver as a condition to a plea agreement and for defense lawyers to advise clients about it.

The case is called US v Kentucky Bar Association and the opinion is available here.  For comments go to The Legal Ethics Forum, Behavioral Legal Ethics, The Legal Profession Blog, and a ;ublic defender.

Thank you very much to Grace Giesel (Univ of Lousville) for sending me the news!