9th Circuit Court of Appeals holds statements made during internal investigation are not privileged

Last week in class we covered the difficult issues that arise when attorneys conduct internal investigations for entity clients. Among these, we talked about the possibility that individuals interviewed by the attorney might feel the attorney represents them and that therefore the information they provide will be confidential.

Yesterday, the Court of Appeals for the 9th Circuit decided a closely watched case on that very issue. In that case, as part of an internal investigation related to alleged backdating of stock options the lawyers for a company interviewed the chief financial officer of the company. He disclosed relevant information which was eventually disclosed to the authorities. The CFO claimed that the attorneys represented both him personally and the company at the time of the investigation and that the statements were confidential and should not have ended up in the hands of the U.S. government. Assuming this was a case of "dual-representation" an interesting question arises as to whether the entity client "controls" the privilege. The opinion, which is available here, holds that the individual could not claim the attorney-client privilege to prevent the disclosure of the statements but only because the statements were not made "in confidence" -- they were made in the presence of people outside the protection of the privilege to begin with.

For more on the story go here, here, here and here.

Florida disciplines attorney for criticizing judge on his blog

Florida State bar authorities have fined trial lawyer Sean Conway $1,200 for criticizing a Ft. Lauderdale Judge on a blog, including calling Conway an “evil, unfair witch.” Prof. Jonathan Turley has reported on this case previously here and in a new post today he calls the ruling "a major blow to free speech and another case of courts or the bar overreaching in punishing lawyers and parties for their criticism of judges." Go here for his comments on the case.

The most common factors leading to legal malpractice claims

Summarizing the discussion during an ABA panel discussion held in Chicago last Thursday, an article published in Friday's Chicago Law Journal states that the top mistakes that lead to malpractice claims are:

--Poor communication between lawyer and client, resulting in disparate understandings of the arrangement.

--Missed deadlines through bad calendaring or failure to know deadlines.

--Poor investigation that misses basic facts.

--Failure to catch errors in work delegated to assistants.

In personal injury cases, blowing the statute of limitations leads the way in malpractice errors, either because the attorney entered the wrong date in the law firm's or lawyer's calendar, the attorney waited for the very last day to file or because the attorney did not know statutory deadlines. Any of these can be used to support a claim of incompetence under Rule of Professional Conduct -- although it is unlikely that a one time ocurrence by itself will result in such a finding.

The second most common reason for malpractice complaints is be familiar to students of Professional Responsibility: the failure to decline the case in time for the plaintiff to find another lawyer. Often a lawyer doesn't make it clear to a potential client whether the lawyer agreed to take the case or is just looking it over. And the lawyer never gets around to actually rejecting the representation.

Evidently, both of these mistakes are pretty basic. In fact, I cover both of them in the classes I teach. In Torts, a first semester class, I tell my students that buying a calendar and learning how to use it is the fist thing they should do after they get a job and that missing the statute of limitations is the dumbest thing they can do. In Professional Responsibility, a third semester class, we cover the issues related to the formation of an attorney-client relationship by discussing the famous case Togstad v. Vesely, Otto, Miller & Keefe which illustrates the importance of letting a client know clearly the decision not to agree to the representation. If a second year law student knows not to make these mistakes, there is no excuse for attorneys in practice to be making them.

More on flat fees

Earlier today I posted a note about when is a flat fee earned (here). I then came across this short comment (here) regarding how disciplinary authorities deal with the issue of whether a flat fee has been earned. In part, it states:

"At present, if a representation ends early, the discipline system will often try to assess what portion of a fixed fee a lawyer earned (i.e., what is “reasonable”) by multiplying the number of hours worked by a reasonable hourly rate. Thus, if a lawyer who regularly bills $200 per hour collects a $5000 fixed fee to prepare a will, but spends only two hours on the will, disciplinary authorities may try to force the lawyer to refund the additional $4600. . . . .

"If disciplinary authorities continue to insist that a challenged fee will be assessed through the hourly billing prism, they will push for fixed fee engagements to be “lose-lose” engagements for the lawyer. . . .

"The limit on reasonableness of fees, commonly Model Rule 1.5, does not require such an outcome."

Sanctions for misconduct during discovery

On Wednesday, a California appeal court upheld a sanction of more than $6,600 after finding that the plaintiffs in a property dispute had engaged in "gamesmanship" in a deliberate effort to bog down discovery. The court held that "the record here strongly indicates that the purpose of plaintiffs' objections was to delay discovery, to require defendants to incur potentially significant costs..." The text of the opinion is available here. For more on the story go to Law.com.

Duty to communicate settlement offer

A couple of days ago I mentioned in class the possibility that a client could sue an attorney arguing negligence in handling a settlement offer. Right on cue, today's news in the Wall Street Journal Law Blog include this item: "Susan Stanford is suing her former divorce lawyer for $200 million, alleging that the lawyer, Nancy Rommelmann, failed to tell her of a verbal offer to settle her divorce for $200 million last year. Click here for the story, from Bloomberg. Stanford filed a complaint (link not available) on Thursday in Houston state court."

Are flat fees earned upon payment or is the attorney simply guarding the money for the client?

There has been a lot of discussion recently on the increasing popularity of "flat fees." So, it is important to understand the possible ethical issues that arise from their use. For example, it is important to know when the fee is actually earned, since the attorney has a duty to return any unearned fees at the end of the representation.

Yesterday, the District of Columbia Court of Appeals published an opinion in which it held that that a flat fee paid to a lawyer remains the property of the client until it is earned. Unfortunately, it is not particularly clear at which point the fee is, in fact, earned. The court simply suggested that whether the fee has been earned will be determined based on an objective reasonableness standard "in light of the scope of the representation" and "in the context of the anticipated length and complexitity of the representation."

The text of the opinion is available here. For more on the story go to the Legal Times Blog and to the Legal Profession Blog.

Breaking news re privilege claim before Congress

Law.com is reporting Bank of America did not meet the deadline to turn over documents to the House Committee on Oversight and Government Reform. The Committee had given the bank until noon today to turn over documents related to legal discussions BofA had with outside counsel before and after it absorbed Merrill Lynch in Dec. 2008. The bank resisted, saying the documents are protected by attorney-client privilege

Go here for the full story.

More on the cases on the law of lawyering pending before the Supreme Court

A few days ago I reported that there are six cases on the law of lawyering pending before the US Supreme Court (see here). Thanks to Renee Knake and the Legal Ethics Forum, here is a list of the issues in those cases:

(1) Do provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act regulating attorneys’ advice to clients and mandating certain advertisement disclosures violate the First Amendment? Milavetz, Gallop & Milavetz, P.A., et al. v. United States, 541 F.3d 785 (8th Cir. 2008)

(2) Is an attorney’s faulty advice grounds for setting aside a criminal defendant’s guilty plea? Padilla v. Commonwealth of Kentucky, 253 S.W.3d 482 (Ky. 2008)

(3) When, if ever, does a novice attorney’s inexperience constitute ineffective assistance of counsel? Wood v. Allen, 542 F.3d 1281 (11th Cir. 2008)

(4) Should a court’s order compelling production of privileged materials be immediately appealable? Mohawk Industries, Inc. v. Carpenter, 541 F.3d 1048 (11th Cir. 2008)

(5) Can quality of performance and results obtained justify an enhancement to an attorney’s fee award under a federal fee-shifting statute? Perdue v. Kenny A, 532 F.3d 1209 (11th Cir. 2008)

(6) May a prosecutor be liable for civil damages for procuring false testimony and introducing that evidence against a criminal defendant at trial? Pottawattamie County v. McGhee, 547 F.3d 922 (8th Cir. 2008)

Does the attorney-client privilege apply in Congress?

A Congressional committee is prepared to require Bank of America to reveal information it has withheld from the SEC and AG Cuomo on grounds of privilege. Numerous members of Congress have claimed over the years that the privilege doesn't apply in Congress. The privilege gives a client the right to prevent disclosure of information in a proceeding where the rules of evidence apply. Since the rules of evidence do not apply in a hearing before Congress, it follows that the Committee would not be persuaded by the argument that the witness can object to disclosing the information. Yet, the Bank claims that disclosing the information in Congress may consitute a waiver in other proceedings where the privilege would apply. Also apparently there has been a practice of allowing witnesses to claim the protection of the privilege during Congressional hearings in the past. Apparently, no court has ever decided the issue and there is very little literature on the subject. It will be interesting to see what happens.

Video on Alton Logan's case

Last week in class we discussed the duty of confidentiality and some of its exceptions. During our discussion I mentioned a 60 Minutes segment about the case of Alton Logan, who was recently released from prison based on the testimony of two attorneys who knew he was innocent but did not say anything for 26 years. The case raises the question whether it would be a good idea to add another exception to the list in Model Rule 1.6(b). Here is the 60 Minutes segment in its entirety. It starts after a short commercial and is about 12 minutes long. (You can view it in full screen by clicking on the square icon in the lower part of the image.)

Judge issues warning to attorney for filing frivolous case arguing Pres. Obama is ineligible to serve as president

U.S. District Court Judge Clay Land has issued a stern warning to attorney Orly Taitz and others in the so-called “birther” campaign to stop filing “frivolous” lawsuits. Land threw out the lawsuit filed on behalf of Capt. Connie Rhodes who is an Army surgeon challenging her deployment orders due to President Barack Obama’s alleged ineligibility to serve as President. Land held that the claim presented no credible evidence and made no reliable factual allegations to support her unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve as president of the United States and that, "[i]nstead, she uses her complaint as a platform for spouting political rhetoric, such as her claims that the president is ‘an illegal usurper, an unlawful pretender, [and] an unqualified imposter.’” Land then warned the lawyer who filed the claim that he may impose sanctions if she files any more “similarly frivolous … actions in this Court.”

For more on this story go here (incl full text of the opinion) and here.

Minnesota Supreme Court suspends judge who referred clients to his own lawyer

The Minnesota state supreme court has suspended a judge for six months without pay for steering matrimonial mediation cases to his own divorce attorney. The court's opinion can be found here. Prof. Jonathan Turley has more on the story here.

Judge strikes DuPont defenses because of misconduct during discovery

Saying that DuPont engaged in "a deliberate scheme to interfere" with the court's rulings during more than a decade of litigation, a judge has struck the DuPont's defenses in two companion cases. Go here for the full story and more links.

Conviction upheld even though the judge and prosecutor were dating

The Texas Court of Criminal Appeals — the state’s supreme court on criminal matters — has ruled that a man facing the death penalty for murder will not get a new trial despite the fact that the prosecutor on the case and the judge who tried the case were at the time involved in a romantic affair. Oh, and by the way, eight of the nine judges who decided the case had previously served on the same bench as the judge who is at the center of the controversy.

For the full story, comments and links to other sources, go here and here.

Over at Legal Ethics Forum, Prof. Andrew Perlman adds: "Notably, and again not surprisingly, the Texas court's order offers no legal analysis or reasoning. It simply offers a bare bones conclusion: "We find that the allegation fails to satisfy the requirements of Article 11.071, § 5(a)." And why is that, exactly? If a law school graduate offered that as "legal analysis," it wouldn't suffice to pass the bar exam. Apparently, it suffices for Texas judges in capital cases when one of their former colleagues is accused of misconduct. This is not the first time that I've seen a state court in a capital case summarily reject a strong argument without any legal analysis, and it is unlikely to be the last. Kudos to the dissent for actually addressing the evidence and issues that were presented."

UPDATE on this story April 21, 2010.

More on the slow death of the billable hour

I have blogged in the past about the debate on whether the billable hour system of billing is losing its popularity (here).

Today, in an article in the Wall Street Journal law blog, Ashby Jones states that "Dating to about five minutes after the billable hour was born, folks have been predicting its death. But throughout it all, no other billing method has come close to knocking the billable model from atop its lofty perch. Until now, it seems. According to an article in Legal Week, both Mayer Brown and Reed Smith are looking hard at moving to fixed or capped fees for their transactional work. is looking to move away from traditional hourly billing models, with plans to bring in fixed or capped fees for transactional work."

For the full article go here.

Six cases before the Supreme Court on the law of lawyering

There is a very interesting note at the Legal Ethics Forum, pointing out that the United States Supreme Court will hear no fewer than six cases related to the role of attorneys and the practice of law during the current term and asking what might be the consequences to regulation of the profession.

Morning cartoon

Go here.

"Professionalizing Moral Engagement"

I usually start my course on Professional Responsibility with a discussion of a case where a lawyer is faced with a representation that has troubling moral implications. I ask my students to list options for the attorney. When we step back and look at the list, we usually find a very clearly defined spectrum... from quitting the job (or the profession entirely) ... to doing what the client wants and not caring about anything else (complete "detachment" or, as one of my students called it this year, becoming a "robot"). Somewhere in the middle, but usually not the first option suggested, someone asks, why not talk to the client about it?... and then someone says because maybe the client will think you are weak, or because that's not what the client wants to hear, etc... And so goes the discussion. Good stuff.

We usually agree to disagree on exactly what is the best course of action for that particular case but we do agree that as lawyers we often will have to face some level of moral detachment.

Coincidently, I just came across a note in the Legal Ethics Forum about an article by Prof. Rob Vischer on this subject called Professionalizing Moral Engagement (available here) which proposes that the professional norm should be the opposite of moral detachment. Here is the abstract:

This essay is an invited response to Michael Hatfield, who argues that the legal profession might avoid creating lawyers willing to “sign off on torture if their professional education did not begin with dis-integrating the skills for intellectual agility from the skills for moral resolution.” I contend that we do not need lawyers to reach “moral resolution," for it is not the lawyer’s job to resolve the moral questions that clients face. We do need lawyers, on the other hand, to ensure that clients are aware of the moral questions that are often embedded in the legal questions raised by the representation. Lawyers’ recurrent failure to raise moral questions infringes on client autonomy by precluding the client’s ability to fully consider what is at stake in the case. Our approach to professional formation both during and after law school almost totally ignores this “moral due diligence” dimension of the attorney-client relationship. Especially in cases where the governing law is indeterminate, lawyers need to be able to engage their clients in a moral dialogue, which requires both familiarity with, and sensitivity to, moral reasoning. But lawyers’ capabilities in this regard should not be deployed in order to resolve the moral questions; rather, they should be deployed in order to assist the client in resolving the moral questions. The essay lays out some possible avenues by which legal education can support the project of professionalizing moral engagement.

Another question re adequate sanctions? What do you think...?

Let's assume that an attorney devotes a substantial amount of time to preparing an appeal brief, but, even after having been granted five extensions, was unable to submit the brief in a timely manner. Then the attorney decides to try to get away with it by placing a back-dated stamp on the envelope and lying to the court about whether the brief was filed on time. In fact, the brief was four days late. After doing all this, the lawyer feels too guilty and decides to confess. The court dismisses the appeal and the lawyer has to face a disciplinary procedure. What sanction would you impose?

The Colorado Hearing Board imposed a suspension of one year and one day, with all but 60 days stayed, and probation for two years. The board gave significant mitigating weight to the attorney's "admirable action in self-reporting [the] misconduct." But for that factor, the board states that disbarment would be the appropriate sanction.

Go here for a copy of the opinion. Thanks to the Legal Profession Blog for the information and link.

Another example of inadequate sanctions

Here is a summary of a new case out of California, taken from the Legal Profession Blog, that in my opinion illustrates my point regarding inconsistency and inadequacy of sanctions.

In this case, the attorney stipulated that he was incompetent, that he kept money that belonged to the client and that he entered into a business transaction with a client without fully disclosing the terms of the transaction. In other words, he stole money from the client and abused his position to take advantage of the client. The client had to go through the trouble of hiring another attorney to sue this attorney to recover the money the attorney had stolen. And the only mitigating circumstances apparently were that he had no prior disciplinary record and that he "cooperated with the bar’s investigation." In other words, that he confessed.

And for all this all he got was a 60-day actual suspension (plus probation for one year -- during which he can continue to practice, of course) and was ordered to take the MPRE within one year. What a joke!

The facts of the business transaction part of the misconduct are interesting: In lieu of attorney fees, the attorney accepted two Japanese military pieces, a helmet and a hand sword guard. Without obtaining an expert appraisal, the attorney and his client agreed the sword was valued at $1,500 and the helmet at $2,500 to $3,500.

Accepting things other than money as payment for services is not inherently wrong, but any such transaction is very well regulated by the rules of professional conduct. The transaction has to be clear and fair. In this case, in violation of the rules of professional conduct, the attorney did not advise the client to seek independent legal advice or put the terms of the arrangement in writing.

For the full story and links, go here.

Another example of why light sanctions set a bad example.

I have argued before that it is difficult to understand why a state would not disbar an attorney who steals from his or her client. (See here, here and here, in just the past few months.)

Now comes a new example of the problem. The Legal Profession Blog is reporting today that the District of Columbia Court of Appeals has disbarred a lawyer for his cumulative conduct over more than ten years evincing 'non-negligent misappropriation and dishonesty...' and other misconduct. The opinion is available here.

Ten years!? It took ten years of misappropriation and dishonesty to get rid of this guy?!

But wait a minute, they did disbar him; so what am I complaining about?

Well, here it is: the lawyer in this case had already been disciplined (back in 2001) for similar conduct. At that time, the hearing committee recommended disbarment but the Board on Professional Responsibility and the Court rejected that recommendation in favor of a mere six-month suspension. Way to set a great example with a nice slap on the wrist, guys! Much good it did. And so a lawyer was allowed to continue to engage in misconduct for another 8 years.

As Mike Frisch, of the Legal Profession Law Blog states -- and I agree -- if the recommendation to disbar had been followed 8 years ago, a lot of time, trouble and additional victims would have been avoided.

Fine for violating "waiting period" provision

Last night in class we discussed advertising and solicitation. The last case we talked about was Florida Bar v. Went for It, where the Supreme Court held that waiting period provisions are constitutional. Soon after that decision, a number of jurisdictions adopted similar provisions and others were enacted into specific statutes. One of these statutes is a federal law that deals with aviation accidents. In class, I argued vociferously that this decision is contrary to logic and to accepted principles of constitutional law. Justice Kennedy wrote a great dissenting opinion with which I agree.

Now, "right on cue", Law.com is reporting today that a prominent New Jersey personal injury lawyer was fined $5,000 for sending solicitation letters to families of passengers killed in the February crash of commuter jet in Buffalo, N.Y. A federal statute bars unsolicited contacts by lawyers with victims or their families within 45 days of an air-carrier accident. [See full text of letter here.] Go here for the full story.

Also note that back in February I discussed the waiting period provision in New York also in the context of the Buffalo plane crash. See here.

Where have you gone loyalty principle? Our nation turns its lonely eyes to you....

Every now and then, a case (or news item) comes along that makes you question just how strong those "values of the profession" that we love to say we are so proud of really are.

This summer the ABA, and many states, went through lengthy debates on whether allowing firms to use "screening" (in cases where a lawyer moves from one firm to another) goes against the value of loyalty. See blog entries here. As part of that debate, one commentator argued: ". . .it certainly appears that real ethics have given way to the interests of stranded, individual lawyers and surviving firms that want to “cherry pick” from the castaways. . . . Violations will occur and will be covered up. Clients will have to fall back on common law duty of loyalty (and common law principles that impute knowledge within firms) when they suspect their confidences have been purchased with a lateral. . . ."

But, okay, you can make the argument that that question is a close call. You can make an argument to justify the position taken by the ABA. Even after the approval of the new approach to the question, loyalty is still an important value. Right?

Then someone noticed that, as originally drafted, the new rule would have allowed attorneys to use screening to represent clients with competing interests concurrently.

Now, this won't do! So the rule was changed again...

Now enter the well oiled slippery slope.

Law.com is reporting that a Delaware federal judge has OK'd a lawfirm to use of a "screen" between the firm's U.S. lawyers opposing client Wyeth in a U.S. patent case and its European attorneys working with the pharmaceutical company in an unrelated matter.

In other words, the firm is representing Wyeth in one case and opposing it in another over Wyeth's objections.

Note this last piece of information - over the client's objections. So where exactly is the loyalty principle here?

The judge's order reportedly states that the client's opposition "means the firm is technically violating the Delaware court's local rules and the American Bar Association's Model Rules of Professional Conduct."

You have to love the use of the word "technically"! I am sorry, but there is not "technicality" here... The firm's conduct is either a violation or it isn't. And this judge simply admits he has agreed to the firm's attempt to act in a willful violation of the rules.

Why would the judge do that, you wonder? Well, essentially, there are two reasons: it is the client's fault and "globalization."

Yep. Believe it or not, the court allows the firm to willfully act unethically because, according to the judge, it is the client's fault. According to the article, he blamed Wyeth for not clearly indicating to the firm which of its in-house attorneys were working on which matters and for having sloppy legal billing practices. "[These practices] . . . created significant confusion for [the lawfirm] as to which entity or entities it was representing,"

And then, there is the obligatory mention of "globalization." The article quotes one of the partners of the law firm in question as saying: "When you're dealing with increasingly globalized economies, increasingly globalized law firms and different countries . . . . courts will likely look to the use of ethical walls "to reconcile all of these tensions."

Re-enter the aforementioned slippery slope.... Couldn't a firm with separate offices in New York and Chicago make a similar argument?

Maybe the mistake someone found in the new rule 1.10 was really just an omen. Maybe we are not that far away from allowing firms to represent competing interests concurrently after all.

Listen people, if your client objects to your representing a competing interest, do the right thing and respect your client's wishes. Your interest in securing another lucrative client or case should never come before your duty to your current client. That is called your fiduciary duty, in case you forgot.

The latest Gallup poll shows our profession could still go lower in the public opinion of trustworthiness. Let's work to move up, not further down.

Go here and here for the full story.

California considers allowing victim statements as part of discipline cases

Law.com is reporting today that for more than two years, the California State Bar has been endorsing tougher and more aggressive prosecutorial tactics in disciplinary matters. The most recent example is a proposal to allow victims to submit a written statement explaining how their former attorneys' alleged misconduct hurt them. Statements would be submitted only after an attorney has been found culpable of pending charges and would be used by the State Bar Court judge in determining the level of discipline to be imposed. Accused lawyers would be allowed to cross-examine the victim only if they demonstrate good cause.

Go here for the full story.

Case dismissed because of attorney's misconduct

When is attorney misconduct so egregious that it warrants dismissal of the client's case? That was the question for the 7th U.S. Circuit Court of Appeals in determining whether to uphold the dismissal of a case that was thrown out for what Chicago federal district court Judge Milton Shadur described as a "virtually unbroken pattern of dilatory and irresponsible conduct" by plaintiffs lawyer Jorge Sanchez of Despres, Schwartz & Geoghegan. The appeals court upheld Shadur's decision, ruling that a district court's power to sanction for violations of the judicial process is necessary to ensure the integrity of the court. Go here for the full story.

Another criminal conviction vacated because of prosecutorial misconduct

Saying a federal prosecutor engaged in misconduct by asking jurors to rely on false testimony by a government witness, a judge has ordered a new trial for four defendants on some counts in a drug conspiracy case in Chicago. For the full story go here and here.

Time sheets

Time sheets during a "good economy" ...

Time sheets in a "bad economy"

Thanks to David Mills of Courtoons.

New decisions on unauthorized practice of law

The Supreme Court of Ohio ruled today that Cincinnati-based Foreclosure Solutions L.L.C. and the company’s owner, Timothy A. Buckley engaged in the unauthorized practice of law by giving legal advice and negotiating with lenders on behalf of thousands of property owners facing foreclosure of their mortgages. For the full story go here.

Last week, the Illinois Court of Appeals (4th division) decided a case called People v Harris, in which it affirmed a conviction of a law school graduate for "false personation of an attorney." He admitted that he was not admitted to practice in Illinois.

The applicable statute reads as follows: “A person who falsely represents himself or herself to be an attorney authorized to practice law for purposes of compensation or consideration commits a Class 4 felony. This subsection (a) does not apply to a person who unintentionally fails to pay attorney registration fees established by Supreme Court Rule.”

The defendant argued that because the statute does not specify that he must be authorized to practice law in Illinois, he did not violate the law if he was licensed in any one state or jurisdiction. I would have thought this argument to be absurd; why would you have an illegal practice of law statute if it wasn't to penalize people who are not authorized to practice law in the state? Yet, by comparing the statute that was repealed when this one was enacted, the court concluded that the defendant was correct. It concluded that "[t]he current statute indicates the legislature’s intent to exclude authorized attorneys from other jurisdictions from the statute’s reach."

This interpretation strikes me as very odd. It means that an attorney not admitted to practice law in Illinois who was practicing law in Illinois would not be in violation of the statute as long as he was admitted to practice somewhere else. In other words, if an attorney admitted in any other state but not in Illinois came to Illinois and ran an office in Illinois to provide legal services to Illinois clients, the state could not argue that he was practicing law illegally in Illinois.

Isn't that the "definition" of practicing law illegally in a jurisdiction? Am I missing something here?

After giving the defendant this small victory, however, the court went on to affirm the conviction finding that there was no credible evidence to suggest that he was in fact admitted anywhere else and there was clear evidence that he was not admitted in two of the four jurisdictions he claimed he had been admitted to.

The court also rejected the defendant's argument that the statute does not apply to law school graduates with legal experience. He argued that law school graduates have legal training and thus are not falsely representing themselves as attorneys.

Now, this one is absurd! He actually argued that a law graduate would not be guilty of practicing law illegally because he was a law graduate. I guess he missed that little detail about having to pass the bar exam to be allowed to practice law... The court rejected the argument.

The opinion is available here.

Incompetence results in discipline

Although the rules of conduct include a rule that requires competence, it is not all that common to see discipline imposed for a single instance of incompetent representation. Thus, it is a little surprising to hear about a new case by the Nebraska Supreme Court in which it suspended an attorney who had failed to provide competent representation in a civil rights lawsuit. The case is available here. The attorney had never handled a similar lawsuit in the past, failed to associate with more experienced counsel and failed to adequately prepare for the case. The attorney did not contest the charges.

Thanks to Mike Frisch of the Legal Profession Blog for the information and link.

On the slow death of the billable hour...

Here is a an article in today's Wall Street Journal Blog on different ways in which companies are trying to avoid having to agree to pay their lawyers by the hour. The article is available here.

Public opinion of lawyers

Only 25 percent of Americans have a positive view of the legal field, according to a new Gallup survey. Go here for the story.

Ninth Circuit reverses conviction because of prosecutorial misconduct

The 9th U.S. Circuit Court of Appeals has thrown out former Brocade CEO Gregory Reyes' criminal conviction for backdating stock options because of prosecutorial misconduct. The Court ordered a new trial because the prosecution misled jurors with false assertions during closing arguments. The opinion is available here. Full story here.

Should stealing from a client be minimized because of "mitigating factors"?

Readers of this blog and my students know how I would answer this question.

The Legal Profession Blog is reporting today on a case where an attorney who had misappropriated entrusted funds was only suspended for one year by the New York Appellate Division. The opinion is available here. In imposing the short suspension, the court considered the following mitigating factors: the lawyer's previously unblemished record, the lack of economic harm to any client, the respondent's sincere remorse, the positive character evidence submitted, the prompt remedial measures undertaken and the fact that the underlying events took place over a limited period during which the respondent was experiencing medical problems and adverse reactions to prescribed medications.

I would have voted to disbar. No question. I can't think of any argument that will convince me that you can justify stealing money from a client. My 5 year old son knows you don't steal. A lawyer who has an ethical and fiduciray duty should know better.

The mitigating factor that bugs me the most is "the lack of economic harm to any client." So, let me get this straight, suppose the lawyer needs money to pay some medical bills... it is now "not so bad" to take clients' money to pay the bills as long as the lawyer replaces the money before anyone misses it?

Moral Turpitude?

I have heard colleages of mine complain that the concept of "moral turpitude" is not very clearly defined as a standard to determine if an attorney should be disciplined. Now comes news of a case that should add fuel to that fire.

The Legal Profession Blog reported yesterday that a District Of Columbia hearing committee held that a lawyer should be disbarred because he engaged in conduct involving "moral turpitude." What is interesting about the case is that this decision was actually a reversal because the Board on Professional Responsibility had concluded that the lawyer's conviction did not establish moral turpitude per se.

Now here are the facts of the case: the lawyer had come home angry about something relating to the Maryland or D.C. lottery. He then proceeded to shoot his wife in the head with a .32 caliber revolver. Fortunately, she survived and the lawyer was sentenced to 25 years in prison.

Now here is my take on this: do we really need to get into a debate as to what constitutes moral turpitude, have a committee issue an opinion, hold a hearing to have another commitee then issue a reversal all to conclude that a guy who shoots his wife in the head when he gets angry and is sentenced to served 25 years in prison should not be allowed to practice law?! I mean, c'mon people! He shot his wife in the head; he got convicted!! What more do you need to know?

Judge holds rules re advertising on the internet are invalid

A federal judge has struck down two Louisiana rules of professional conduct that attempted to regulate Internet advertising. The opinion is available here. The court ruled that the state did not provide any evidence that one of the rules was narrowly tailored to directly and materially advance substantial state interests and that it was not clear that the other could apply to internet advertising.

For more on the story go here.

Lawyer disciplined for blogging about trial while serving as a juror

Not too long ago, I posted a note about a lawyer who got disbarred for not taking his role as a juror seriously. See here. Now comes news of a lawyer who disregarded a judges order not to discuss a case in which he was serving as a juror.

The lawyer had his law license suspended for 45 days when he decided to post comments on his blog about the trial after the judge warned the jurors "not to discuss the case, orally or in writing." Wilson has been cited as claiming that he did not understand the jury instructions to prevent him from posting comments about the trial on his blog. This argument merits only one response: Lame!

The lawyer simply disregarded a court order showing disrespect for the process. And it did not help his case that that the court of appeals reversed the convition at least in part because the lawyer blogged about the case.

For more on the story, go here.

More on the crisis of representation in cirminal cases

Here is another version of the story I reported earlier today about the public defender's office in California refusing to take cases for lack of resources. Go here for the story in Law.com.

How not to practice law: try to blackmail your opponents to get what you want

Blackmail is not a form of zealous advocacy. This is a simple principle apparently too difficult to understand for an attorney in Nebraska who was recently suspended for 120 days for attempting to blackmail a prosecutor to get the charges against his client dismissed. Interestingly, this is an attorney who had already been disciplined on two prior occasions - both for lying to the court.

As the Legal Profession Blog reports, the attorney wrote a letter to a prosecutor claiming that the newly-elected county attorney was in violation of the same law the attorney's client was accused of. The letter stated that if the charges were not dropped the attorney would file a motion requesting an investigation of the county attorney and included a draft of the motion. Finally, the attorney then stated that if the charges against his client were dismissed "Our lips, of course, are forever sealed."

The opinion is available here.

I have an additional comment on this case: is the sanction appropriate? I think this case is another example of the problem of an ad-hoc system of sanctions. Here is an attorney who has been disciplined twice already, who has demonstrated a pattern of conduct and disrespect for the court, his oath and the system. This is his third disciplinary case -- his second suspension. I don't understand why he his allowed to continue to practice law.

Access to legal services in criminal cases still in crisis

The ABA Journal.com is reporting today that the public defender’s office in Alameda County, Calif., is telling judges that it can no longer represent certain defendants because it doesn’t have enough lawyers to do the job and that public defenders in at least seven other states have refused to take new cases or have sued to limit the numbers. Full story here.

Prosecutor suspended for showing photos of rape victim

Prof. Jonathan Turley is reporting today that a County Attorney in Kansas was suspended from practice for six months after he showed pictures of a 17-year-old girl being raped to the parents of the alleged perpetrators over the objections of the victim's parents. The opinion is available here.

The prosecutor decided not to prosecute the offenders. He claimed "he had seen the damage underage drinking could do" and thought it would be better to show the photographs to the parents of teens depicted drinking at the party even though the victim's family objected. He also stated that he did not understand why other women and girls who believed themselves to be victims of sex crimes might now be reluctant to report the crimes or assist with prosecutions.

The victim's parents are now suing the County over the disclosure of the photos. I don't think I have seen any case where prosecutorial misconduct is the basis for tort liability. For the full story, click here.

ABA fixes problems with new Model Rule 1.10

As is well known by now, earlier this year the ABA approved an important amendment to Model Rule 1.10 which recognizes "screening" as an acceptable way to avoid conflicts of interest caused when an attorney joins a new firm. Soon after the amendment was approved, however, it became clear that the rule was drafted in a way that seemed to suggest that screening could be used to avoid conflicts in cases of concurring conflicts - which was never intended. Go here and here for my reports on the approval of the new rule and the problem in drafting. Now comes word that the ABA has approved new changes to the new Rule to correct the mistake. In order to make clear that the rule applies only to laterally hired attorneys, the new rule would read as follows 

 Model Rule 1.10: (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless (1) the prohibition is based upon a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and . . . . 

 Thanks to Legal Ethics Forum for the update.

Should lawyer engaged in sex crime be disbarred?

A lawyer who works for the big firm Goldman Sachs has been accused of trying to arrange a sexual encounter with an undercover investigator posing in online chats as a 15-year-old girl. Should he be disbarred if convicted?

Interestingly, the New York Personal Injury Blog points out that although NY appellate courts generally issue unanimous opinions in cases dealing with ethics and lawyer disbarment, last December there was as a sharp divide in an identical case (See: Sex Offender Keeps Law License (Updated)).The Appellate Division, First Department ruled 3-2 that suspension was in order as opposed to disbarment.

New commission to review the ABA Model Rules again

Legal Ethics.com is reporting today that the ABA is about to undertake a new comprehensive review of the Model Rules of Professional Conduct. The new effort will be directed by the Ethics 20/20 Commission and will focus on issues related to globalization, including whether to allow multidisciplinary practice. For the full story go here.

Offensive form of advertising, but is it protected speech?

New Jersey's Committee on Attorney Advertising held a hearing Monday to decide whether legal ethics rules were violated by the placing of a lawyer's advertising leaflet on the windshield of a rape victim's car.

For the full story go here and for some comments go here.

Lawyer disbarred because he did not take his role as a juror seriously

The California Supreme Court has disbarred an attorney who reportedly changed his vote during jury deliberations simply to end a tie because he was tired of serving as a juror. For the full story, go here and here.

How NOT to practice law: lie to the judge

Suppose the judge calls for a hearing and you are not prepared. Here is what you should NOT do: do not tell the judge you can't make it that day because _______ (insert lie here.)

The Legal Profession Blog is reporting today that the Arizona Disciplinary Commission approved a proposed 30 day suspension followed by two years probation in a matter where the attorney had falsely advised a judge that he could not proceed to a hearing because he was due to appear in another court. The judge checked and found that the representation was false. The attorney admitted the misconduct and asserted in explanation that he was "emotionally frazzled" and unprepared due to a fight with his wife the night before the hearing and the theft of his briefcase.

Thanks to Mike Frisch of the Legal Profession Blog for the information.

Should there be a duty to report your own negligence during the representation?

The Legal Profession Blog is reporting today that the Minnesota Lawyers Professional Responsibility Board has proposed the adoption of Opinion No. 21, which states that a lawyer who knows that his or her conduct could reasonably be expected to be the basis for a malpractice claim by a current client, the lawyer should disclose any significant risk that continued representation of the client will be materially limited by the personal interest of the lawyer and should advise the client to seek independent legal advice about the potential claim and the lawyer’s continued representation.

For the full story and comments on it go here and here.

Trial tactics?

In my Professional Responsibility course, we spend a bit of time talking about "trial tactics." Here is a story that falls in that category. Prof. Jonathan Turley recently posted a comment on his blog on a case where an attorney filed a motion demanding that the court ordered opposing counsel to wear shoes without holes in court. The lawyer insisted that the shoes are cheap theatrics to play to the sympathies or jurors. The other lawyer replied that they are just cheap. For the full story go here.

More on "Sotomayor and Associates"

Go here for another update.

One more update on the story re Judge's Sotomayor law firm name

Here is yet another comment on Judge Sotomayor's possibly misleading use of a firm name by Eric Turkewitz, the blogger who actually brought up this story for the first time back in early June. Go here.

Don't take more work than you can handle

The New York Appellate Division for the First Judicial Department has imposed a three month suspension in a matter involving two instances of client neglect. The opinion is available here.

In a way this case is nothing other than another example of a lawyer trying to handle more work than he was capable of. What is interesting about this particular case, though, is that the court makes a point of saying that the lawyer actually meant well. His intentions were, in fact, very good:

". . . respondent, although taking on matters that he was not prepared to handle, sought to assist members of his community who did not have access to appropriate legal assistance and/or did not have the funds to procure such assistance. His motives and intentions were clearly those of a person who sought to do good deeds. In many cases he took on matters without compensation, hoping that eventually he would be able to resolve the matters to the benefit of his clients. However, he often lacked the expertise and finances to attain these goals."

What is important, then, is to remember that it does not matter if your intentions are good. You simply can't run your practice in a way that neglects your clients. If you have too much work, you need to find a way to get it under control.

Thanks to the Legal Profession blog for the information.

Update on Judge Sotomayor's Advertising issue

Almost a month ago, I posted a note about a story regarding Judge Sotomayor's use of the phrase "and associates" in her firm name when it was not clear she had any associates at the time. (See here). As I pointed out in my note, the story was first brought up by Eric Turkewitz of the New York Personal Injury Law Blog. Well, apparently, the New York Times picked up on the story and published an article on it (without attribution to Turkewitz) and now a lot of people are talking about the issue. See the Legal Ethics Forum discussion here, for example.

See Turkewitz reactions to the NYT's story here and here.

See the NYT story here.

Statute of limitations mistake results in disciplinary sanctions

Mike Frisch of the Legal Profession Blog wrote today on a case in which the Tennessee Supreme Court affirmed a five month suspension imposed on an attorney for engaging in negligent conduct. The attorney missed the statute of limitations deadline for filing a personal injury suit. When I teach Torts, I tell my students this is one of the dumbest mistakes an attorney can make and I tell them it is a common basis for malpractice suits. I can now tell them it can also result in disciplinary sanctions. I knew that was true before, but my sense (which could be wrong since I am not following every single sanctions case out there) is that courts do not typically impose disciplinary sanctions for single instances of purely negligent conduct.

Should a candidate be denied admission to the bar because of too much debt?

Should a candidate be denied admission to the bar because of too much debt? Yes, says a panel in New York. Full story here. I understand it when a panel concludes that an applicant has demonstrated a recurrent inability to manage his or her finances (or has been irresponsible about it), but I am not so sure that simply having too much debt justifies denial of admission. It is not clear to me whether the case here is an example of the former or the latter. The story states that the panel that denied admission stated "that his student loans were too big and his efforts to repay them too meager for him to be a lawyer."

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

More prosecutorial misconduct

After seeing two cases in less than three months where the Department of Justice asked the court to dismiss indictments after allegations that its lawyers violated rules requiring disclosure of information to the defense, a federal judge (Emmet Sullivan) sharply questioned Justice Department lawyers about whether they are in violation of the D.C. Rules of Professional Conduct by making false statements to the court or failing to correct false statements.

In both cases the Justice Department was accused of withholding evidence and making false statements to the court. The latest allegation comes in the conspiracy cases against businessman Zhenli Ye Gon, accused in an international drug trafficking scheme.

For more on this story go here and here.

Illinois adopts ABA Model Rules

The Illinois Supreme Court announced yesterday it has (finally) adopted a new set of rules mostly based on the ABA Model Rules of Professional Condcut. The rules will be effective starting January of 2010.

The text of the new rules is available online here and in pdf format here. A summary of the changes is available here.

In 2008, while the rules were still being considered by the Supreme Court, I published an article discussing them in detail. The article is available here. In it, I praised the work of drafting committees for the most part, but I also criticized some aspects of the new rules.

Here are a a few of the most significant changes in the new rules:

--Unlike the current rules, the new rules include comments (usually the same text of the comments to the ABA Model Rules).

--The new rules abandon the old notion that the duty of confidentiality is based on a distinction between confidences and secrets which results in a rule that protects a much broader range of information. (The Ethical Quandry blog has a short comment on the implications of the new rule on confidentiality here.)

--The new rule on confidentiality also significantly changes the circumstances where disclosure of confidential information is permitted and expands the circumstances where it is mandated.

--The new rules fix an important discrepancy between the title of rule 4.2 and its text.

-- The new rules change the approach to the issue of whether an attorney can represent a client if the attorney has to testify in the client’s case.

--The new rules adopt a specific rule banning sexual relations with a client unless a consensual sexual relationship existed between them before the client-lawyer relationship began and the comment to the rule clarifies that when the client is an organization, the rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters. (Rule 1.8(j))

--The new rules adopt a new rule to regulate duties to prospective clients based on Model Rule 1.18.

--The new Rule 3.8 on special responsibilities of prosecutors adds a duty to protect the defendant's right to counsel.. It also adds a controversial statement regarding the authority of a prosecutor to subpoena other lawyers.

--Unlike the ABA Model Rules, the new Illinois rules do not require consent to conflicts of interest to be in writing.

--Sadly, the new rules eliminate the current rule urging lawyers to provide pro-bono services.

--The approach to the duty to report another lawyer's misconduct seems to mandate disclosure of more information and under more circumstances than the ABA Model Rule.

--The new Rule 4.4(b) states that a lawyer who receives a document relating to the representation of a client that the lawyer knows was inadvertently sent should promptly notify the sender. The rule, however, does not impose a duty to return the document or to refrain from reading it. The comment to the rule states that unless there is applicable law that requires the lawyer to return the document, the decision to return it is a matter of professional judgment
and personal choice.

Prosecutor's comments result in conviction reversal and sanctions

The Legal Profession Blog is reporting today on yet another case of prosecutorial misconduct - improper arguments during the closing in a murder trial.

The prosecution's case was essentially based on the credibility of two witnesses which the defendan't lawyer vigorously attacked during closing arguments. In response, the prosecutor made statements that improperly vouched for the credibility of these two witnesses. As described in the opinion, "In one instance, the respondent told the jury that he did not offer one of the witnesses any deal until after he personally verified the witness’s account by following the route to the crime scene that the witness had described. The respondent improperly vouched for the second witness by telling the jury that the witness had turned his life around after serving time in a federal prison." This conduct violated Mass. R. Prof. C. 3.4(e), 3.8(h) and (i) and 8.4(d).

In addition, the prosecutor's closing argument also crossed the line when he suggested to the jury that they should avenge the victims in violation of Mass. R. Prof. C. 8.4(d).

The murder conviction of one of the defendant was overturned by the Supreme Judicial Court and the court ordered a new trial due to the prosecutor's improper closing argument. (Commonwealth v. Williams, 450 Mass 894 (2008)).

Full story available here.

Sleeping during trial = ineffective assistance of counsel

A Brooklyn judge has reversed a conviction because the defendant's attorney (Michael Harrison) repeatedly fell asleep at trial, allegedly read magazines while witnesses testified and gave such a rambling, implausible opening argument that the jury laughed. The court held that "the facts and circumstances of this case compels this court to find that the quality of the legal representation provided to [the] defendant . . . was so insufficient that the integrity of the judicial process was placed in jeopardy. . ." and that "defendant did not receive the minimum level of representation that is required by law."

The case is People v. Irizarry, available here.

The full story is available here and here.

It's not so bad to violate a rule if you have a good reason for it. Huh??!!

The Legal Profession Blog is reporting today on a decision from the Maryland Court of Appeals that raises an interesting question regarding the nature of sanctions under the Rules of Professional Conduct.

In this case, the Court found that a lawyer violated Rule 1.8 when he made a loan to his client, but then found that this improper transaction was mitigated by the fact that the client requested the loan and that the client's need for the funds was based on some "pressing circumstances." The Court then concluded that, for this reason, the lawyer's conduct "did not rise to the level of an MRPC 8.4 violation."

I don't understand this. First of all, Rule 1.8 stands on its own. A violation of Rule 1.8 is a violation of the Rules. Thus there is no need for it to "rise to" any other level. Second, in almost all cases in which an attorney makes a loan to a client there are "pressing circumstances."

If there is a rule, the Court should apply it. What the court is saying here is that the lawyer violated the rule, but it is not so bad because he had a good reason for it.

I am sorry but that's absurd. That undermines the reason for the rule in the first place. If you don't like applying the rule, change the rule. Several states have created exceptions to this rule to allow for loans to clients in need. But don't say that it is okay to violate the rule if there is a good reason to do it. 

The opinion is available here.

Court finds concurrent conflict does not justify reversing conviction

The Legal Profession Blog is reporting today that the Idaho Supreme Court has affirmed a defendant's murder conviction even though the defendant claimed that his counsel labored under an imputed conflict of interest because a fellow public defender had represented the deceased wife's mother in a related matter. The court agreed that there was a conflict that would have required the personal disqualification of the other lawyer. However, the court found that the trial court's approval of a screen between the two lawyers was an adequate way to eliminate the problem (which is interesting since Idaho Rule of Professional Conduct 1.10 does not provide for screening as a cure for imputed concurrent conflicts). The court justified its decision concluding that there are unique considerations that apply to public defender offices that militate against a per se disqualification rule. The opinion is available here. I am not sure what to think, although the use of a screen to avert concurrent client conflicts does not sound right to me. But I will reserve my comments until I read the opinion.

How not to practice law: lie to the disciplinary committee

Again, taking a break from grading exams to post this new installment to our on-going series on "how NOT to practice law."

So, here is a little nugget of wisdom: if you make a mistake and have to appear before a disciplinary committee, do not lie! Committing perjury in a disciplinary proceeding is probably not a good idea!

The Legal Profession Blog is reporting today on a case in New York in which the Appellate division disbarred an attorney for, among other things, lying during the disciplinary process. What is interesting is that the court states clearly that the lying in and of itself would have been sufficient to justify the sanction: "Respondent's lack of candor before the Committee, the Referee and Hearing Panel normally arises in the context of aggravation on the issue of sanction. Here, however, as the Referee correctly noted, respondent's pattern of untruthful testimony while under oath before Committee staff constitutes significant misconduct, entirely independent of all his other misconduct which already justifies his disbarment."

Billing for time spent billing?

Suppose an attorney prepares a bill and sends it to a client. Then suppose the client asks the lawyer to review it, explain some items or revise it. Can the lawyer charge the client for the time spent reviewing the bill?

According to a Grievance Committee of the North Carolina Bar the answer is NO.

The ABA Journal.com is reporting today that the comittee held that a $50 charge to review a bill is the same as “task padding” and excessive. According to the committee, reviewing the bill is an “obligation every lawyer owes to a client and is an overhead expense incidental to the practice of law.” The Committee's opinion reprimanding the lawyer is available here.

Illinois appellate court finds ineffective assistance of cousel

I am taking a break from grading exams to catch up with blogs, news and other stories.

About a month ago, I reported that the Illinois Appellate Court (5th Division) reversed a murder conviction because of ineffective assistance of counsel. See here.

Today, the First Division of the same court has announced a similar ruling finding that the defendant was denied effective assistance of counsel because of his attorney's failure to make a closing argument and his failure to object to the admission of certain irrelevant evidence (a gun).

The court determined that although under many circumstances the waiver of closing argument is a matter of trial strategy, it would be a rare case in which choosing not to make a closing argument in a jury trial would be sound trial strategy. "Given the evidence in this case," the court concluded, "this was not such a case."

The case is People v Wilson and it is available here.

Did Judge Sotomayor violate ethics rules when in private practice?

A couple of months ago, I commented on a decision of the Supreme Court of Ohio which found that a lawyer had violated a number rules of professional conduct by using a firm name with the phrase "and Associates" when, in fact, the lawyer did not have any associates. Interestingly, I just read that Supreme Court nominee Sonia Sotomayor may have done the same thing at one point in the past. She referred to her firm as "Sotomayor and Associates" but it is not clear that she had any associates. For the full story go here.

Thanks to Eric Turkewitz of the New York Personal Injury Law Blog for the information.

Exams and vacation

You may have noticed I have not been posting any news recently. I have been busy trying to finish grading final exams and tomorrow I am taking a few days off to take our kids to visit their grandfather who lives several states away... This means I will be away from the computer for a little while longer, but I will come back with interesting stories, news and comments soon.

Comment on crisis re access to representation

Tort Deform Blog has published a short comment on the crisis regarding lack of access to legal representation in civil cases. Among other things, it points out that "although 50 percent of New Mexicans qualify for Legal Aid services based on income, the entire state has only 43 attorneys working for Legal Aid." This is very troubling. See the full comment here.

More on whether authors of "torture memos" should be disciplined

I have posted before on the debate regarding whether the drafters of the "torture memos" should be disciplined for violations of ethical duties (see here). Much has happened since I last posted on this issue.

Today, the Blog of the Legal Times reports that a collection of organizations have filed complaints with five state bar associations, accusing former attorneys general John Ashcroft, Alberto Gonzales, Michael Mukasey, John Yoo, Jay Bybee, Stephen Bradbury and a number of other former Bush administration lawyers of violating professional standards by sanctioning the use of torture on terrorism suspects. The complaints can be viewed here.

Professor David Luban, who testified today before the Senate Judiciary Committee has published his testimony here. In it, he argues that "the memos are an ethical train wreck" and that the they "fall far short of professional standards of candid advice and independent judgment."

The Washington Post also has an article on the subject here.

More on Pres. Obama's military tribunals

Here is a link to a good article on Pres. Obama's decision to resume the use of Bush era military tribunals by Joanne Mariner, the Terrorism and Counterterrorism Program Director at Human Rights Watch. The article starts like this:

"[L]ast Friday, the Obama administration announced that it would resume trials of Guantanamo detainees by military commissions, albeit under new rules that would offer defendants greater legal protections. . . . While the revised commissions improve somewhat on the model used by the Bush administration, they still fall far short of providing the due process guarantees found in U.S. federal courts.

Unsurprisingly, Republicans are jubilant. Portraying Obama's reversal as a belated embrace of the Bush administration's war on terror, their tone is unabashedly triumphant.
"With some minor changes, he really is following the same path President Bush pursued," declared [Ari] Fleischer. "He has now decided to preserve a tribunal process that will be identical in every material way to the one favored by Dick Cheney," crowed the Wall Street Journal.

This is not change we can believe in."

The full article is available here.

Obama to continue use of military tribunals

The Obama administration has announced it will restart the controversial Bush military tribunal system. The tribunal system has been widely criticized and a number of prosecutors have resigned their positions due to ethical concerns. For more information on this you can do a search for news items, particularly on the case of Army Lt. Col. Darrell Vandeveld who announced he resigned because he had grave doubts about the integrity of the system. For articles on this go here, here and here.

Article on what clients should think about when discussing hourly rates

Here is a link to an interesting article on the debate over hourly fee rates.

As the article states, "the imminent demise of the billable hour has been confidently predicted for years, maybe now more than ever. And yet,. . . the billable hour somehow manages to survive. The hourly rate -- at least until it finally dies -- is one of the knottiest aspects of the relationship between lawyers and their clients. The hourly rate problem can become a trap."

The article goes on to discuss what it calls "the fundamental problem with the billable hour" which is "how does one measure the value of a lawyer's time?" and provides five good reasons "why clients shouldn't fall into the "hourly rate trap," i.e. allowing retention decisions to be guided principally by hourly rates."

Illinois appellate court reverses conviction for ineffective assistance of cousel

In a rare victory for criminal defendants, the Chicago Daily Bulletin reports that the 5th District Appellate Court of Illinois has reversed two murder convictions finding that their trial attorney provided ineffective assistance of counsel for failing to present any evidence.

In his opening statement, defense counsel said repeatedly that the defendants would testify in their defense and that the jury would hear testimony implicated other suspects and that the physical evidence in the case implicated those suspects but not the defendants. However, after the prosecution rested, defense counsel rested without presenting any evidence.

The Daily Bulleting states that "as for his failure to present any evidence, defense counsel said: ''I'll hope you forgive me for not extending the trial about another week and not putting on any evidence. I ask you not to hold that against my clients; that is my decision because I thought we've had enough.''

The trial court denied the defendants' post-trial motions, finding that defense counsel had conducted a ''significant and meaningful adversarial testing'' of the state's case.

On appeal, the defendants argued that their convictions should be reversed because their attorney was ineffective for failing to call any witnesses in their defense. The appeals court agreed and reversed. The appeals court said that counsel may be deemed ineffective ''if he promises that a particular witness will testify during his opening statement but does not provide the promised testimony during trial'' and that "[w]e cannot conclude . . . that the resulting prejudice was harmless.'' The Court also stated that "[a]fter promising and suggesting that the jury would hear evidence supporting the defense, counsel failed to present any evidence whatsoever and his stated reasons for failing to do so are not reasonable explanations.''

The case is People v Bryant and it is available here.

Lack of funding affects representation of indigent defendants

I have blogged before about the problems in our criminal justice sytem due to the inadequate funding for programs that provide representation to indigent defendants. (See here).

Similarly, The National Law Journal.com is reporting today, that "an ongoing state funding shortage has left a number of indigent criminal defendants in Georgia without lawyers and that "a chronic problem of unpaid state legal bills, especially in expensive capital cases in which Georgia's public defenders are conflicted out of the representation, has made private lawyers unwilling to take on such cases, reports the Atlanta Journal-Constitution."

Are firms overbilling for online research?

Assume a firm has an account with an online research service like Westlaw or Lexis according to which the firm pays a flat fee for using the service. Then assume the firm conducts certain research for a client and charges the client hourly fees to perform the research. Is that firm overbilling the client?

Some people are arguing that some firms are "using Westlaw and Lexis as profit centers" and, as the National Law Journal.com is reporting today, at least one lawsuit has been filed claiming unjust enrichment against a firm that billed a client $20,000 for online legal research that cost the law firm only $5,000.

I have not seen the complaint in this case, so I don't really know what the allegation is, but I am guessing the issue here depends on what it is the firm is billing the client for. If the firm is billing the client for the value of the lawyer's time in doing the research, the firm should be free to charge the hourly fee. If, on the other hand, the firm is charging the client for "expenses" then the firm should only charge the client the actual value the firm is spending on the expenses.

Study Claims Bankruptcy Lawyers Are Billing Illegally

In a recent story published in the ABA Journal.com, Debra Cassens Weiss states that "A new study claims bankruptcy lawyers are billing their clients illegally by failing to get court approval before collecting fees. The study found that the lawyers bill bankrupt companies for about 80 percent of their fees without first submitting the charges to a judge as required by the U.S. Bankruptcy Code, Bloomberg reports. The study says the fees are instead reviewed later, but the payments “are harder to reverse than to prevent," according to accounts in the American Lawyer and the Wall Street Journal Law Blog."

The ABAJournal.com story is here. For a story on Law.com on the same topic go here

What do you have to do to get disbarred in Alabama?

I spend some time in class looking at the disparities in sanctions imposed for different types of offenses. Inevitably, we conclude that there is little consistency and, thus, I advise my students to remember that no matter what the conduct is, if it is improper a lawyer "always risks disbarment."

Here is a new good example to illustrate the disparity among jurisdictions. In this case, two different jurisdictions imposed discipline for the same conduct. The conduct included entering into a fee agreement that allowed the client a $200 credit for each time she had sex with him and a $400 credit if she arranged for other females to have sex with him.

For this, Alabama imposed a suspension of fifteen months. In a second case of misconduct, Alabama imposed four month suspension. In contrast, the proceedign in Florida involved these two same claims and a third one (misuse of client's funds) and the Florida Supreme Court disbarred the attorney. Which state do you think got it right?

Disciplinary procedure confidentiality rule declared unconstitutional

Louisiana Supreme Court has ruled that confidentiality rule that blocks any participant in an attorney disciplinary proceeding from publicly discussing the matter until formal charges are filed violates the First Amendment. The case is called In re Warner (available here.) Writing for the court, Justice Jeffrey P. Victory concluded that the confidentiality rule—which the court itself adopted in 1990—is a content-based prior restraint on speech. It cannot survive strict scrutiny, the court added, because the rule is not narrowly tailored to serve the state's interests.

Sanctions for deceptive firm name

Earlier this month the Supreme Court of Ohio ruled that a sole practitioner violated numerous ethics rules by using misleading firm names that incorrectly indicated he was involved in a partnership with another attorney and employed “associates.” The case is called Disciplinary Counsel v. McCord and is available here.

The Court held that lawyer acted deceptively when he improperly held himself out as a member of entities named “McCord, Pryor & Associates,” “McCord, Pryor & Associates Co., L.P.A.,” and “McCord & Associates.” Pryor was another lawyer who had an office in the same building as McCord but they did not operate under any recognizable legal structure, and they had no agreement to share profit and losses. They had separate clients, separate IOLTA accounts and separate fee income. They shared attorneys' fees only on cases they worked on together, never on their separate cases. At the time McCord created the entity he called "McCord, Pryor & Associates Co., LPA" Pryor had been dead for more than two years. McCord admitted that he formed this entity solely to thwart his ex-wife's attempts to garnish his bank accounts to pay for his outstanding child-support obligations. The Court also found that it was improper to use the words "and Associates" in a firm name when the attorney did not, in fact employ any associates.

On these facts, the Court agreed with the board that McCord committed the following rules violations:

• practiced under a misleading firm name (Rule 7.5(a) and DR 2-102(B));
• stated or implied that he practiced in a partnership or other organization when that was not so (Rule 7.5(d) and DR 2-102(C));
• committed an illegal act that reflected adversely on his honesty or trustworthiness (Rule 8.4(b)); and
• engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c) and DR 1-102(A)(4)), conduct prejudicial to the administration of justice (Rule 8.4(d)), and conduct adversely reflecting on his fitness to practice law (Rule 8.4(h)).

Yet another case of prosecutorial misconduct

Not too long ago I posted some comments on recent cases involving improper arguments by prosecutors (see here and here. Also, see here for other comments on cases involving other types of prosecutorial misconduct.)

Here is another case regarding improper arguments by a prosecutor. In this case, the Florida Third District Court of Appeal concluded that "while we find that the statements were improper, we affirm the defendant's convictions because, based on the overwhelming evidence of guilt, the error was harmless."

The Court concluded that "we again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence. . . . Additionally, closing arguments “must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.” . . . “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”"

In a "reluctant concurring opinion" Judge Ramirez wrote that "Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter. I reluctantly join today’s decision, mindful that I may be promoting the notion that winning is more important than giving defendants a fair trial. But given the overwhelming evidence of Williams’ guilt, I have to agree that under State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), “there is no reasonable possibility that the error contributed to the conviction.”

But here is a question for all the judges: if they all agree that the prosecutor engaged in improper conduct, and that the conduct requires the court to remind lawyers that if they don't understand their roles "they should not be members of the Florida Bar", how come they do not suggest imposing discipline in this case?

The opinion is available here.

Update on Supreme Court case re prosecutor immunity

A few days ago I posted a note on a case called Pottawattamie County v. Harrington which raises the issue of whether prosecutors should be immune from lawsuits for procuring false evidence in a criminal investigation and then using it at trial. The PopTort blog posted a comment on the case today which is available here.

Update on the case of the lawyer who altered law school transcript

A few days ago I reported on the case of a lawyer who was disciplined for, among other things having altered grades in a law school transcript in other to get a job. The ABA Journal.com is reporting today that the chief counsel for the Illinois agency that oversees lawyer discipline says the lawyer deserves to be disbarred, and he will appeal a recommendation for a lesser punishment. Law.com has also published a story on this here.

Different view on what constitutes business transaction with client

Model Rule 1.8 (and its state equivalents) do not ban a lawyer from engaging in business transactions with clients. However, it is clear this is allowed subject to many limitations. Today, a disciplinary Board in Colorado has decided that a lawyer is subject to sanctions because he wife was involved with a business transaction with one of the lawyer's clients. The Presiding Disciplinary Judge held that the lawyer negligently failed to terminate an attorney-client relationship when he learned about his wife's business transaction with the client. The Judge concluded this meant the lawyer effectively entered into a business transaction with his client without the appropriate disclosures in violation of Colo. RPCs 1.16(a), 1.8(a) and 5.3(b). The case is called People v. Montoya.

Thanks to Mike Frisch of The Legal Profession Blog for the information.

Another wake up call for students: conduct while in law school will come back to haunt you

An Illinois Hearing Board has recommended a three year suspension in a case involving an attorney who had failed to disclose information in his admission application to the University of Chicago Law School, was accused of plagiarism while in law school, altered his law school transcript (gave himself better grades in 20 courses!) to obtain employment and failed to disclose that conduct in the bar admission process. The opinion is available here.

UPDATE (April 28):  The lawyer is now facing disbarment.  Go here.

UPDATE (January 2010):  The Illinois review board recommended one and a half year suspension, which I criticize here.

UPDATE (June 3, 2010):  The IL Supreme Court rejects the Board's recommendation; imposes a 3 year suspension instead.  Go here.

Should a lawyer be suspended from practice for driving too fast?

Here is a new case that involves the often debated issue of whether an attorney should be sanctioned for conduct not related to the practice of law. In this case, the lawyer was involved in three incidents involving speeding violations--one of them for driving 140 mph in a 70 zone. In another traffic stop the police found marijuana in his car but the charges were later dismissed. Based on these facts, the lawyer agreed to a four month suspension.

The marijuana possession is clearly an indication that there may be a more serious problem behind the conduct, but for the sake of argument, let's assume the only issue was the traffic violations. Assume you have a lawyer who is stopped for driving 140 mph in a 70 mph zone and assume he or she has had numerous traffic violations for speeding. Should that alone justify imposing sanctions? What if the person is a candidtate for admission; should that conduct be considered in determining whether the candidate should be admitted?

Thanks to the Legal Profession Blog for the information.

How not to practice law: forge the judge's signature

The Legal Profession Blog is reporting today on a case out of Ohio in which a lawyer forged the signature of a judge on a draft judgment entry granting his client occupational driving privileges after the court had rejected the client's request. The lawyer claimed that he had signed the judge’s name on the rejected entry to show his client “what an approved occupational driving entry would look like” and then let the client keep the forged document.

In a 5-2 per curiam decision, the Supreme Court of Ohio found the lawyer's testimony “simply not believable” and concluded that the lawyer had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and illegal conduct adversely reflecting on a lawyer’s honesty or trustworthiness.

Based on these facts, the Court suspended the lawyer for one year. Do you think that was too lenient?

The court's decision is linked here.

Problems with criminal justice system

There is a lot of literature out there criticizing our criminal justice system for, among other things, not doing enough to protect the right to counsel and because some judges don't seem to care about the quality of representation provided bylawyers appointed to represent indigent defendants.

In a very ironic twist, today, the ABA Journal.com is reporting that Texas, the same state that gave us the famous sleeping lawyer case and the judge who closed the courthouse to prevent a last minute capital case appeal, should be criticized for rewarding the work of appointed capital case appellate lawyers.

Wait; that does not make sense, does it? We criticize the system because it does not reward the lawyers for their work, and now we are criticizing it because it does?

The problem is that what the article criticizes is the lack of oversight over the quality of representation. Lawyers are getting paid regardless of whether they do the work and, apparently, some are just not doing the work at all.

The story comes from the Houston Chronicle, which is reporting that Texas lawyers who have repeatedly missed filing deadlines in death-row appeals are not only being paid for their work but are allowed to represent inmates in other capital cases. The article mentions a few lawyers by name and states that only one of the lawyers the newspaper found to have repeatedly missed death row deadlines has faced fines or been forced to forgo fees by judges.

For more details about which lawyers reportedly have filed late and the excuses they offered for their tardiness, read the full article in the Chronicle.