Meet a Guantánamo detainee lawyer

Here is an interview from a few years ago of an American lawyer who volunteered to represent Guantánamo detainees before the Supreme Court. I don't know if he is one of the lawyers in the middle of the Liz Cheney/"Al Quaeda 7" controversy, but I think the interview is relevant to the discussion. He makes a very eloquent argument for why lawyers who defend unpopular clients do it and, I think, for why we should be praising their work. The interview is only about 6 minutes long.

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The debate about Liz Cheney's attacks on DoJ lawyers continues

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

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

New York Times story

Op-ed from former Attorney General Michael Mukasey

Op-ed piece by Marc Thiessen (supporting Liz Cheney)

Reply to Thiessen's article by Prof. David Luban

Article in the Wall Stree Journal Law Blog


Thanks to John Steele for some of these links.

In Search of Volunteer Lawyers for Death Row Inmates

In Search of Volunteer Lawyers for Death Row Inmates... Go here for the full story.

More on the controversy over Dept of Justice hiring former detainee lawyers

Here is a segment from last Friday's TV show Countdown with more details on the controversy and the reaction to the video:

Visit msnbc.com for breaking news, world news, and news about the economy

Here is a segment from today's show in which Ken Starr discusses the letter I mentioned in the previous post:

Visit msnbc.com for breaking news, world news, and news about the economy

More debate as to the attacks on the Dept of Justice lawyers

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

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

The full letter is available here.

Meanwhile, the Blog of the Legal Times is reporting today that "[p]rominent former Department of Justice officials are joining the growing criticism against efforts to question the ethics and loyalty of current DOJ attorneys who, in private practice, had advocated for Guantanamo Bay detainees." Go here for the full story.

For more on this story (and other interesting links) to the Wall Street Journal law blog (March 5 and March 8 story, Politico, and another story in the Wall Street Journal law blog.

The New York Times also published an Op-ed piece (here) that begins thus: "In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within."

When you check out these stories don't forget to look at the comments readers have posted about them.

Support legal aid in Illinois

From the Illinois State Bar Association blog:

"Gov. Quinn will announce his budget plan for fiscal year 2011 on Wednesday, March 10. For the first time in state history, the governor’s office has launched a website to gather public comment on what to include in the budget. This is a chance to let the Gov. know the importance of civil legal aid in our communities. The Governor’s office is tracking the issues so your voice will be heard. The Illinois Equal Justice Foundation’s appropriation for civil legal aid was cut 50% this year – from $3.5 million to $1.75 million. Eight long-standing grantees were cut, no new programs were funded and the awarded grants were reduced 20%-79% compared to 2009. This means 37,000 fewer people will have their civil legal needs met at a time when legal aid is needed most. Click here to post your comment to the Governor’s budget website."

Controversy over Dept of Justice hiring former detainee lawyers

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

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

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

The attack on the administration and on the lawyers themselves is obviously hypocritical (the Bush administration also hired lawyers who had represented detainees) but, more importantly, it is based on just plain ignorance of what it means to be a lawyer and to believe in and defend the rule of law and the Constitution. I am happy to see that it has been strongly denounced by so many so quickly, including by lawyers prominent in the previous administration.

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

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

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

I commend the administration for recognizing the value of commitment to doing the right thing, to defending the rights of the accused, to defending the constitution and that which makes our legal system fair and valid. I am disappointed, on the other hand, to have heard reports that the administration is considering abandoning its decision to conduct criminal trials in favor of military tribunals; but that is a different issue we can talk about some other time....

Here are the links to an article in the Blog of the Legal Times on the controversy over the video and to one in the ABA Journal.com in which ABA President Carolyn Lamm criticizes efforts to smear the reputation of the Justice Department lawyers. Here is the link to an op-ed piece in the Washington Post called "A Shameful Attack on the US Legal System."


UPDATE: Here is a copy of the video that started the whole controversy:




UPDATE #2: My wife read this and asked me to post something on her behalf. Here is what she wants to say: “Liz Cheney can kiss my ass.”

Podcast on IOLTA Accounts

The Legal Talk Network has posted an informative podcast on the many details that relate to keeping IOLTA accounts. You can listen to it by clicking on the "play button" below or, if you can't see the button, you can find the program here.  If you can see the program below, you can also download it by clicking on the three dots on the right side of the volume control.

Attorney for defendant in Fort Hood shooting starts a blog

CNN is reporting here that John Galligan, the attorney for the Army psychiatrist implicated in a shooting at a Texas military base, has responded to a military gag order by starting a blog on the case. More here.

For his dedication to his role, Simple Justice praises Galligan stating that "Galligan's representation of Hasan reflects the best of our profession. It's not about his personal definition of justice, but about his duty to his client. . . . By creating [the] blawg, John Galligan made clear that his duty is to zealously represent his client, and that the villification of Hasan in the media requires some degree ot leveling the playing field, whether the Army agrees or not. John Galligan is unapologetic for being Nidal Hasan's defense lawyer, and is clearly willing to face the consequences for doing his job well."

I greatly admire attorneys who make a commitment to represent trully unpopular clients. It takes courage, determination and conviction. Go take a look at the blog and particularly at the comments that people are posting to get a sense of how difficult it can be to zealously stand up for the rights of the accused.

Ethics opinion on the relationship between a lawyer representing a client with diminished capacity and a guardian at litem

A new ethics opinion (no. 353) from the District of Columbia (available here) examines whether a lawyer representing a client with diminished capacity can seek the appointment of a substitute surrogate decision-maker when the current surrogate decision-maker is making decisions for the client against the advice of the lawyer.

It concludes that "A lawyer representing an incapacitated person with a surrogate decision-maker should ordinarily look to the client’s chosen surrogate decision-maker for decisions on behalf of the client and accord the surrogate decision-maker’s choices the same weight as those of a client when the client is unable to express, or does not express, a contrary view. A lawyer may not substitute her judgment for the judgment of the surrogate decision-maker when the surrogate decision-maker is acting within the scope of the power afforded to her by law, was selected by the incapacitated person before becoming incapacitated, and is not engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner. If the surrogate decision-maker is engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner, then the lawyer may take protective action including seeking a substitute decision-maker. The lawyer may not withdraw because a withdrawal will substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist."

Thanks to the Legal Profession blog for the information and link.

LegalZoom Sued in Class Action for Unauthorized Law Practice

IP Watchdog is reporting that "LegalZoom" was sued in Missouri for engaging in the unauthorized practice of law (for a copy of the complaint go here). Go here for the full story.


Thanks to Legal Ethics Forum for the information and links.

Why don't lawyers call back?

The two most common complaints about lawyers are usually that their fees are too high and that they don't keep the client well informed about the status of the case. Clients typically say they would like the lawyer to call them (or to return their calls) more often. So why do lawyers don't call back? Here is one lawyer's semi-serious explanation.

Death penalty reversed in case in which the judge and prosecutor were dating

Back in September 2009, I commented on the news that the Texas Court of Criminal Appeals — the state’s supreme court on criminal matters — ruled that a man facing the death penalty would not get a new trial despite the fact that the prosecutor and the judge were involved in a romantic affair during the trial. See here.

The Associated Press is now reporting that the Texas Court of Criminal Appeals has reversed itself and has ruled that the death sentence should be overturned and the defendant is entitled to an new sentencing phase.

Interestingly, though, the decision makes no mention of the affair between the judge and prosecutor. Go here for the AP story.

Public defender story

From a story in Simple Justice Blog:

A new blawg, Public Defender Revolution, has joined the blawgosphere, with an interesting 6 year old tale of being pushed to trial unprepared. By the somewhat anonymous "carol d" a 15 year veteran of the trenches:

"Six years ago, when a judge ordered me to conduct a trial for which I was not prepared, I was shocked. . . Before that day, I knew that a judge would respect the fact that I had conducted over 100 jury trials, and that when I said I wasn't ready, I wasn't ready. And if I wasn't ready, it would be unconscionable to order me to trial."

The judge rejected her request for time.

"When the judge denied my motion to continue, I was dumbfounded—the judge had just been appointed to the bench and had never practiced criminal law, but I didn't know what to do when he said, "I understand why you are not prepared, Ms. Defender, and I find it is not your fault, but the citizens of Washington have the right to have this matter resolved, and you have to start the trial on Monday.""

Her reaction to this order was to post a "panicked" inquiry to the Washington Association of Criminal Defense Lawyers, an association she had recently joined, looking for "support and advice."

"After considering the advice—most of which was to proceed with trial while making a careful record—I decided that I was going to refuse to conduct the trial."

She then explains:

"This post isn't about that decision process (because many of the factors were case-specific), but my philosophy can be summed up by the "You Can't Make Me" icon: You can't give me too many cases, too many clients, too many prosecutors, and then tell me I have to conduct a farce of a trial when you know I am not ready. A system that will force me to betray my client by failing to represent him adequately at trial, is a system I won't play along with. You can't make me fail my client."

Ultimately, carol d's trek through judicial coercion, panic and bad advice to the ultimate decision to put the client's interest first, to not "fail [her] client," isn't unique, but a fascinating insight into the fortitude required of the criminal defense lawyer and the obstacles in the way.

The story bears similarities to the Portage, Ohio public defender who was ordered to go to trial on one day's notice and refused. He was held in contempt and jailed for his insolence.
Continue reading this story here.

How not to practice law: park in the handicapped parking spot

Here are two additions to our running list of ways NOT to practice law. I'll let the headlines speak for themselves.

Lawyer Suspended for Using Client’s Handicapped Parking Permit (also here)

Judge Accused of Paddling Defendants Is Disbarred
(interesting note about this case: this former judge is now campaining for state senator)

Judicial appointments for prosecutors who had been disciplined for misconduct

The criminal defense law practice blog "Simple Justice" has an interesting story about two prosecutors who intentionally ignored and withheld exculpatory evidence in order to obtain a conviction. The conviction was later overturned when it was proven that the defendant was innocent (by using DNA evidence). The defendant sued the county where this happened and the county settled with the defendant for $4.1 million for his wrongful murder conviction. And, after all this, the prosecutors were appointed to the bench.

As Simple Justice points out, ". . . that they convicted an innocent man, withheld exculpatory evidence, were censured for it and then, after all that, moved on to be judges, is just too much to take. . . . To not penalize [them] is bad enough, but to reward prosecutors who engage in misconduct is beyond the pale."

Go here for the full story.

No discipline for torture memo authors

As you all probably know by now, the big news this week is the fact that the Office of Professional Responsibility of the Dept of Justice issued its report concluding that Justice Department lawyers did not commit professional misconduct by writing legal memos that authorized the use of torture by US officials. The conduct of the lawyers in authoring the so-called "torture memos" has been widely criticized by professional responsibility experts as a violation of basic principles of the profession including the duties of competence, honesty and independent professional judgment. For examples of this, you should take a look at the testimony of Prof. David Luban before the House Judiciary Committee on May 6, 2008 (here) and the

and the brief filed by several Prof Responsibility professors in the Padilla v Yoo case (available here.) (My thanks to the Legal Ethics Forum for that link)

For a detailed discussion of the memos and many helpful links go here. For more on the story and some critical commentary go here, and here. For a comment by Prof. Jonathan Turely on the tv show Countdown go here.

The original OPR report concluded that former Assistant Attorney General Jay Bybee of the Office of Legal Counsel committed professional misconduct and that his deputy, John Yoo, committed intentional professional misconduct. Go here for a copy of the OPR report. But Associate Deputy Attorney General David Margolis rejected those findings. Go here for the report.

Interesting story of romance, conflicts of interest and dishonesty

The Legal Profession blog is reporting today an interesting story.

The story starts with an attorney who began to date a guy she had met at the gym. Unfortunately, the attorney did not know that her firm was representing the guy's wife in a divorce action. (I wonder if it ever came up in conversation that he was still married (and that he had two minor children)...?).

When she learned of the firm's involvement in the divorce case, she disclosed the relationship to the partner handling the case and offered to be screened from the representation. The partner told her to either end the relationship or leave the firm.

The attorney agreed to cease dating the firm's client's husband and stayed with the firm. The partner advised the client of the situation (assuring the client that the relationship was over) and, after consulting other counsel, the client agreed to continue with the firm as counsel.

However, the attorney and the husband resumed the relationship. The firm fired the attorney and the Professional Responsibility Board imposed a six month suspension for her dishonest conduct in attempting to keep the relationship secret from the firm. The panel stated the attorney did not seem to understand the issue of the case and that she did not understand nor acknowledge the wrongful nature of her conduct. Go here for a copy of the opinion.

How not to practice law: lie

I have noted before that lying to the disciplinary committee is never a good idea! See here. Now the Legal Profession blog is reporting a new case that brings up the same issue. In this case, the referee commented extensively on the attorney's lack of candor throughout the disciplinary proceeding. The referee found the attorney's testimony under oath at various times to be "deliberately evasive; inconsistent and contradictory; and false, incredible and impossible to believe." OUCH! That is not a good sign... Go here for the full story.

Former bank robber applies to law school

Here is a link to a story in the New York Times about a former bank robber who became a "jailhouse lawyer" (an inmate who prepares petitions for other inmates) and is now applying to law school. Let's assume he gets accepted, graduates and passes the bar, should he be allowed to practice law? Should he be approved by the "character and fitness" authorities?

This is an interesting question in and of itself, but here in Illinois it is even more interesting given the approach taken by the Supreme Court in the famous (or infamous) Matthew Hale case. As you may remember, in that case, the court refused to hear Hale's appeal after he was denied admission by the C & F committee because of his racist views.

One question raised by the only dissnting judge in the Hale case was whether it was proper for the committee to deny admission when the candidate had not engaged in conduct that would get a practicing lawyer disciplined. Given that the court denied review, the question was never answered.

Now, let's go back to the bank robber's case. It is pretty obvious that a practicing lawyer who is convicted of robbery would be disbarred. (Go here for such a case.) So, based on that alone, you'd think that the bank robber would not pass the C&F review.

But then there is the question of whether we should consider what has happened since the conviction. Should we recognize that it is possible for people to be rehabilitated, to have the necessary good character now even if they didn't at some point in the past?, etc.

The character and fitness review process is based on the notion that we can have a good idea of how people will act in the future by examining what they have done in the past. Many would argue that this is debatable, or that, at the very least, it is something to be decided on a case by case basis.

So, we don't admit racists to practice law; should we admit a convicted (presumably rehabilitated) bank robber?

I saw this story in the Legal Ethics Forum. Go here to read the comments.

ABA misses the mark on resolution about criminal justice system

The ABA annual meeting was held recently and the House of Delegates announced 9 criminal justice resolutions. One of them bothers me. It says that Judges are encouraged to “conduct a conference with parties in a criminal case prior to trial, advising them of their respective disclosure obligations, such as the obligation of federal prosecutors to disclose information under Brady v. Maryland and related case law.”

Before I explain what bothers me about this, let's remember that there is a specific rule of professional conduct that spells out clearly the duties of prosecutors particularly the duties of disclosure and the notion that the prosecutor is a 'minister of justice.' All prosecutors are expected to know their duties and to act according to them. Failure to either know them or abide by them can, and should, be the basis of disciplinary action.

So, here is what bothers me about the resolution. First, there's the notion that we need to remind prosecutors that they need to comply with their duties. Then, more importantly, there's the fact that if prosecutors are not complying with their duties what the ABA should be encouraging judges to do is to impose severe sanctions on those prosecutors who either do not know their obligations or who act in disregard of their obligations!

Prosecutor is immune from civil liability even though guilty of hiding evidence

The Court of Appeals for the 6th Circuit has held that a former federal prosecutor who was tried and acquitted of conspiring to hide evidence in a terrorism case is immune from civil liability because of his prosecutorial role on the case. The case is Koubriti v. Convertino and it is available here. For more on the story go here.

Illinois Supreme Court recognizes a possible claim for ineffective assistance of counsel

The Supreme Court of Illinois has found that a convicted defendant has alleged enough facts to support a claim of ineffective assistance of counsel and remanded the case for further proceedings.

In this case, the defendant was convicted after a bench trial for attempted first degree murder and the appellate court affirmed. The defendant then filed a pro se postconviction petition, claiming that his trial attorney was ineffective in failing to request a hearing on his fitness for trial. The circuit court summarily dismissed the petition as frivolous and patently without merit, and the appellate court affirmed.

However, the Illinois Supreme Court held that the petition should not have been dismissed because it had stated the gist of a constitutional claim. The Court found that the petition met the burden of proof because it alleged that the defendant had told his trial attorney that he had been taking medication for bipolar disorder and depression and that he had previously attempted suicide. The defendant also alleged that he had been under medication at the time of his trial and that his attorney lied in claiming to be unaware of this. Attached to the petition were affidavits from defendant’s mother and aunt indicating that counsel had been informed about defendant’s bipolar medications and suicide attempts.

Based on this record, the Court found that the claim of ineffective assistance of counsel in failing to seek a fitness hearing was sufficiently supported. The Court remanded for postconviction proceedings in which the lower court would have to determine whether to hold an evidentiary hearing. The case is People v. Brown and it is available here.

Last year the Illinois Appellate Court sided with defendants who claimed ineffective assistance of counsel in at least twice. See here and here.

How not to practice law: get married when you are already married

Here is an interesting addition to our on-going list of "how not to practice law".... The Legal Profession Blog is reporting that the Supreme Court of Ohio recently imposed a six month suspension on an attorney who while in the process of divorcing his first wife "exercised poor judgment by deciding to go ahead with [his] wedding" to a new wife. For more on how not to practice law, go here.

Client autonomy in criminal cases

Next week I will be discussing the concepts of "client autonomy" and the "allocation of authority" within the attorney-client relationship in both civil and criminal cases. Coincidentally, the Legal Ethics Forum has posted the abstract of a new article on the subject by Erica Hashimoto titled "Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case." Go here for the description of the article.

New article on the constitutionality of IOLTA programs

IOLTA programs are a mechanism for funding legal services for the poor. They require attorneys to place certain funds in interest generating accounts and banks to provide the interest to an agency that uses it to provide funds for legal services. All states have IOLTA programs. This approach to raising funds for legal aid has been under attack by opponents of legal aid for years. Here is a link to a post in another blog which discusses a new article on the subject.

Update on disbarment for not taking role of juror seriously

Back in July I posted that 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. See here. Today, the Legal Profession Blog posted an update on this story (here) which includes two interesting new pieces of information: (1) shortly after his trial before the bar on the misconduct as a juror, the attorney had been suspended for stealing money from a client and (2) the attorney now has filed a federal civil rights action against the Supreme Court, the State Bar Court and the bar attorneys handling his case. Stay tuned...

NJ Supreme Court to decide (again) whether attorney can be sued for malpractice in negotiating a settlement that the client agreed to

Law.com is reporting (here) that the New Jersey Supreme Court has before it a case (Guido v Morris) which raises the issue of whether a client can sue his or her lawyer for malpractice over a settlement that the client originally said was acceptable.

This is an interesting question that the court has addressed before, reaching seemingly incompatible results. In Ziegelheim v. Apollo, 128 N.J. 250 (1992), the Court said the "fact that a party received a settlement [in an underlying action] that was 'fair and reasonable' [did] not mean necessarily that the party's attorney was competent or that the party would not have received a more favorable settlement had the party's incompetent attorney been competent…" For this reason, the Court refused to adopt a per se rule barring malpractice actions by clients who later become dissatisfied with their settlements, unless the clients were trying to commit fraud. However, more recently, in Puder v. Buechel, 183 N.J. 428 (2005), the Court held that a litigant who accepted a settlement in an underlying action and who clearly stated on the record that she was satisfied with the outcome was precluded from suing for malpractice.

The current case before the court is Guido v. Duane Morris, and it can have very important consequences for all attorneys in the state.

The statement quoted above from Ziegeineim v. Apollo makes perfect sense to me. The fact that a client accepts a settlement does not preclude the possibility that an attorney was negligent. However, openning the door to possible liability any time a client changes his or her mind after he or she agreed to a settlement proposed by the attorney can make the attorney's practice more difficult and can, ultimately result in fewer settlements since, fearing possible liability, attorneys could become reluctant to recommend settlements. At the very least, it would affect the dynamics of the attorney-client relationship.

Attempting to reach a compromise between the two precedent cases, the court of appeals in Guido concluded that a malpractice claim could be pursued if "particular facts" support a claim of attorney incompetence. It will be very interesting to see what approach the Supreme Court decides to take. Stay tuned. For more on the story go here.

UPDATE - June 11/10 Last week, the New Jersey Supreme Court issued its decision in Guido v. Duane Morris allowing the legal malpractice suit to go forward holding that "the existence of a prior settlement is not a bar to the prosecution of a legal malpractice claim" arising from the settlement. For more on this story go to Law.com.

More on fake blogs and advertising on the internet

A few posts below this one you will find a note about companies that have set up "fake blogs" as means to create advertising on the internet. Here is a link to another comment (with lots of useful links) on this. Here is another one (with a good discussionin the comments) on disbarred lawyers selling themselves as "social media experts."

$5,000 fine for solicitation after airplane crash

Eric Turkewitz is reporting today that Detroit attorney Carl Collins has paid a $5,000 fine for his solicitation of victims in the wake of the February 2009 crash of Continental Flight 3407 near Buffalo According to the US Attorney's Office he sent letters out to victims' families 12 days after the crash, in violation of federal law that bans solicitations within 45 days of air disasters. This is the second such settlement regarding the crash, with New Jersey attorney Richard Weiner having likewise been fined $5,000 for chasing clients with letters. Go here for more on the story by Turkewitz and to The Detroit News for more on the story. For my earlier posts on solicitation issues created by the airplane crash in Buffalo, go here and here.

TV show review: The Deep End

"The Deep End," a new tv show about lawyers premiered Thursday night on ABC. The plot revolves around the lives of four first-year associates at a prestigious Los Angeles firm. I did not watch it so I can't comment but here is a link to a review by a number of first year associates who did watch it. In a nutshell, most of them thought it was terrible.

In answer to the question "what was the most unrealistic part of the show?" one of the associates interviewed said: "I think the most unrealistic part of the show was the casual attitude the one first-year had about having sex with a client and the casual attitude the partner who knew about it. . ." Another said "The most unrealistic part of the show had to be the managing partner telling an associate in his first week to blow off all the ethical rules so that the firm could maintain a big client."

I also liked three of the answers to the question "What advice would you give to characters on the show?" The comments I liked in answer to this question were: "Stop sleeping with clients", "read the ethics code" and "morals and ethics are not the same thing, so stop getting them confused."

Movie review: William Kunstler, Disturbing the Universe

Last Thursday, I posted an announcement about (and the trailer of) the new documentary on William Kunstler currently playing at the Gene Siskel Film Center (see here). I went to see it on Friday and here is my review.

I think the film is excellent. But let's start with the basics. In case you don't know, William Kunstler was one of the most important civil rights lawyers of his generation. He was either an activist or a lawyer with the Freedoom Riders, the protests against the Vietnam war, the American Indian Movement, the Attica prison revolt and others. He represented "the Chicago 8" accused of causing a riot during the Democratic Party Convention in Chicago in 1968 and activists of all types. He also represented common criminals, mobsters and defendants noone else would dare be associated with.

The documentary does an excellent job of providing all that information, but the most important thing about this movie, in my opinion, is that it is not a biography. The movie is really a memoir from the perspective of Kunstler's daughters who struggled to understand him and his passion for his work and his clients. Kunstler was a radical, a lawyer, an activist, a public figure and a celebrity. But he was also a father and a husband. These are a lot of roles to play at the same time, even for a giant like him.

I met Kunstler many years ago when he briefly visited Puerto Rico to represent some Puerto Rican independence activists. I was familiar with his work and had admired it for a long time and was, quite frankly, "star-struck" to make his acquaintance. When he shook my hand and asked me "how are you?" the one thing that immediately struck me was that I realized he actually cared. He actually really wanted to know how I was. He wasn't just looking for me to say "OK", he wanted to know if I really was ok. I am sure I just said "fine" or something like that, but I am also sure that if I had said I was worried about the case (or something else for that matter) he would have spent some time with me talking about it.

There is a little spot in the movie when one of the interviewees says that if someone shouted an insult at Kunstler, he would stop and ask the person why he felt that way and that Kunstler would then spend some time talking about it. I know that is true, because he was that kind of a person. Even if he met you for just a few minutes, those few minutes mattered to him.

And years later, you would realize that they mattered to you too.

That, I think, is also the experience the Kunstler sisters are trying to describe in the movie. As they were growing up, they did not fully realize (or understand) why their father would represent criminals, why people gathered outside their door to yell insults or why they got threats in the mail.

Now, years later, they have put together this movie to answer those questions in a very touching way. Their father did what he did because he cared. He cared about justice. He was not a perfect father or husband or lawyer or person. He made mistakes and bad decisions. But he would not sit idly by while others acted; he acted.

The movie has some great footage both of the social events of which Kunstler was a central figure but also of family life in the Kunstler home. I was touched by the little clips of home movies of him playing with his daughters when they were little and by a famous photo of him working with one of the girls, then just an infant, lying on top of the desk looking at him. To me the movie is not just about lawyering, activism, history and politics; it is also about personal relationships.

In my Professional Responsibility class, I try to spend just a little bit of time teaching my students how important it is to really understand our roles as lawyers in society and how important it is to be able to explain it to others. We could take a lesson from Sarah and Emily Kunstler. In "William Kunstler: Disturbing the Universe" they have given us a very personal memoir that shows why it is so important.

How not to practice law: sue your own client

Just about a year ago I discussed the case of US v Beltrán Moreno as a remarkable example of incomptence (see here). This was the case of the judge who imposed a lower sentence than that mandated by law, the prosecutor who did not catch the error and the attorney who appealed the case not knowing that if he won the appeal his clients would end up getting a higher sentence. I thought it would be hard to find a better example of complete incompetence.

Yet, here comes a report from the North Carolina State Bar on a lawyer who was disciplined for filing a claim on behalf on one client against another one of his own clients. Yes, you heard right. This genius sued his own client.

Now, this case does raise an interesting question. What is the best way to deal with this level of misconduct? I mean, what this guy did was clearly incompetent. What should we do about it? Should he be disbarred? ... censured? ... suspended?

I am not sure this is a case where it is in anyone's benefit to impose those kinds of sanctions, do you? I don't think that simply admonishing him is enough, but I also don't think that disbarring him is necessarily warranted (assuming the guy does not have a sustained record of misconduct or incompetence). How would you feel about imposing a suspension during which he would have to go back to law school to take a course on Professional Responsibility?

For a couple more details (there aren't that many) on the story go here.

Solicitation on the internet: using fake blogs to make search engines help lawyers who want to solicit clients

A few years ago, attorney Eric Turkewitz, the host of the very good New York Personal Injury Blog, commented on the practice of using blogs as a new for of solicitation. He noted how some lawyers placed the names of accident victims in the subject heading of their otherwise legitimate blogs in the hopes they would find the posts and hire them, for example. In that post, he discussed whether that practice was ethical. Take a look at that original comment by going here.

More recently, Turkewitz has written a new series of comments on websites that have created totally fake blogs that are really just a front to divert people to websites of lawfirms that pay for that service. They do it, as Turkewitz explains, "by simply regurgitating local accident or arrest stories and placing a call-to-action link at the bottom. Posts are filled with buzzwords to game Google that, if coupled with the call-to-action for a recent event, places them firmly in the camp of Solicitation . . . " "FindLaw" is the best example and Turkewitz comments on it and how it functions are very informative. His conclusion: "FindLaw is now tainting their clients, diminishing the stature of their vaunted professor-commentators, and lowering the level of discourse in the legal profession as a whole." Two of his recent posts are available here and here (and they both have more links to more posts and information.)

Another aritcle on "the isolation of legal practice and suicide"

I don't want to be depressing with two consecutive posts on this subject but it just so happens that yesterday the Wall Street Journal Law Blog published another article on the state of profession called "On the Isolation of Legal Practice and Suicide" (available here).

High suicide rate within the legal profession

During the first week of class, I spent a little time talking about how it is easy to be unhappy with our work as lawyers if we don't enjoy what we are doing and if we don't really understand our roles as lawyers. We discussed how reports show some lawyers turn to alcohol or drugs and others seem to be depressed or withdrawn. In fact, the American Bar Association has reportedly found that suicide among lawyers occurs two to six times more than among the general population.

Unfortunately, reports of suicides are becoming more frequent. Almost a year ago, the former chair of Kilpatrick Stockton's Supreme Court and appellate advocacy practice, committed suicide in the firm's Washington, D.C., office after losing his job in a round of layoffs. In December the suicide of a Connecticut real estate lawyer was linked to a drop-off in his practice. And today, Law.com is reporting that a prominent partner in the Houston office of Baker & Hostetler has also committed suicide. Go here for the full story.

John Edwards and professional discipline for dishonesty?

In class the other day we discussed Model Rule 8.4's broad reach on the issue of "dishonesty." I also told my students of a certain Legal Ethics e-mail discussion list I belong to that generated about 20 messages in just a few minutes in response to a single line question: Should John Edwards be disciplned for his dishonesty regarding his infidelity and paternity of a child out of wedlock (here is a link to the story in the New York Times). Since that discussion was (and continues to be conducted) through a bunch of e-mails sent to the members of the e-list, I can't reproduce it here. However, some of the members of the list also participate in the Legal Ethics Forum and they took the discussion there, which you can now check out here. The question is whether dishonesty in personal matters should be considered conduct for which attorneys should be disciplined. When does dishonesty about an attorney's personal life show he or she should not be allowed to practice law? Can we use evidence of past dishonesty about personal issues to predict future professional misconduct?

Commercials

Just in time for my class on attorney advertising, Prof. Jonathan Turley has compiled a good selection of short commercials here. Take a look!

Documentary film about William Kunstler

William Kunstler was one of the most important and influential civil rights lawyers of his generation. (If you are in my class at JMLS, check the problem on page 309 of the casebook.) His daughters made a documentary about his life and work called "William Kunstler: Disturbing the Universe" which will be shown at the Gene Siskel Film Center, 164 N. State St. for a few days starting tomorrow (Friday Jan 22). Sarah and Emily Kunstler will attend the 7:45 p.m. screenings on Friday and Saturday and participate in audience discussion. For more information visit the film's Web site. Here is a trailer:

Sanctions for misconduct in process of "e-discovery"

Article here; opinion here.

Thanks to Legal Ethics Forum for the links.

How not to practice law: show up to court drunk

Here is another addition to our running list of simple rules on how NOT to practice law: show up to court drunk.

The Legal Profession Blog is reporting today that the North Carolina State Bar has suspended a lawyer for one year because the lawyer "appeared in the courthouse intoxicated and was loudly belligerent to courthouse personnel." The order is available here.

For an older example of a similar problem you can watch this series of videos of hearing to determine if lawyer is drunk while attempting to represent a client in court: part 1 (5 minutes), part 2 (9 minutes), part 3 (9 minutes), part 4 (10 minutes)

Here is a sample of some of the items on the "how not to practice law" list so far:

have affair with married woman, then agree to represent her husband in divorce

when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

try to recover expenses from your client after you agreed not to do it

provide the wrong citation to key cases so the judge goes nuts trying to find them

try to blackmail your opponents to get what you want

lie to the judge

take more work than you can handle

lie to the disciplinary committee

forge the judge's signature

ask for stolen property as payment for your services

rob a bank

be rude to the judge's clerk

don't proofread anything before you file it in court

One question; seven answers

Here is the question: “How can you sleep at night when you know you are representing a criminal defendant who is guilty?" Here is a link to a good response... with seven different answers.

Can prosecutor ask defense attorney to quit representing a client as part of a plea bargain for a different client?

Is it ethical for a prosecutor to make a deal to reduce a sentence for one defendant conditioned on an agreement by the defendant's defense lawyer to conclude his representation of another defendant? Here are two articles on the subject: here and here.

What do you have to do to get disbarred...?

I have criticized at least once (here) an Illinois hearing board for imposing light sanctions for misconduct.

Today I have to add to that criticism. The Review Board of the Illinois ARDC has rejected the Administrator's call for disbarment in the much -publicized case involving a lawyer who lied on his law school application, plagiarized a paper while in law school and altered his transcripts to give himself better grades in 20 courses in order to get a job in a big firm. I blogged about early reports on this case here and here.

In its report, the Review Board rejects the recommendation for disbarment and, instead, proposes an 18 month suspension.

The Legal Profession Blog has more on the story here. The Wall Street Journal Law Blog has more here. Go here for the Board's report.

UPDATE (1/16/10): Law.com has more on this story here.

Contingency fees might be coming to the UK

Tort reformers in the US often suggest that we should do away with the use of contingency fees and adopt the "loser pays" system typically used in England. This is so because without contingency fees many, if not most, victims of accidents would not be able to find representation and would be unable to recover compensation for their injuries.

However, the attack on the validity of the contingency fee system may now be substantially weakened by the fact a recent report prepared at the request of the English Judiciary has concluded that contingency fees should be allowed in the UK. In what one commentator called "the most controversial of all his recommendations," Lord Justice Jackson's Final Report proposes that lawyers be allowed contingency fees, acknowledging that the "arguments in favour of contingency fees ... outweigh the arguments against."

Go here for the full story by Law.com. Go here for a copy of the report itself. Go here for links to the preliminary drafts of the report.

Lawyers and social media

Simple Justice Blog has a good post today about "lawyers and social media" and other dangers on the internet.... It starts like this:

"When I was first asked if I would agree to provide information to a private business seeking to "teach" lawyers about social media, I responded with how much of their take they planned to donate to charity. If none, then why would they expect my free services so that they could turn a profit? My correspondent came back with a funny response, neither offended by my antagonistic response nor embarrassed by having been outed for her effort to free-ride. . . . So, against my better judgment, I agreed to answer a bunch of questions about lawyers and social media so that this for-profit entity could create a presentation to sell to lawyers as if it was CLE-worthy. It was a few minutes of my time, and more importantly given the other lawyers who were being asked to contribute, I realized that I was likely the only voice that would have anything to say suggesting that social media was not the panacea of wealth, success and prominence. The others were all social media cheerleaders, or made their living off of it.The presentation was completed and it's available . . . It's absolutely awful. It's a lie. It's nonsense. It's total and complete crap."

To read the full story go here. To see the slides of the presentation in question, go here.

Can flat fees be non-refundable?

I have blogged before about the increasing attention that the concept of flat fees is getting, particularly at a time when clients are looking for ways to lower their legal costs. Some commentators, I have said, are predicting the death of the hourly fees and predicting 2010 to be the year of the flat fee. I continue to be skeptical since hourly fees have been pronounced dead many times before and, like zombies, they continue to come back to life.

In any case, a number of jurisdictions are not helping the case for the adoption of flat fees by continuing to blur the distinctions between "flat fees" and "security retainers."

Let me provide some background here. I always thought of flat fees as a predetermined amount charged for the performance of a predetermined task. For example, I could say to the client that I would draft a contract for $500. Whether it took me 4 hours or 4 days, I'd get $500. Presumably, the attorney has figured out the amount to charge based on a number of factors including the going rate for similar work in the market and the amount of time that the lawyer expects the work to take. The risk for the lawyer is that if the work ends up taking up more than that amount of time, the return for the time spent diminishes. (In some cases the miscalculation may turn out to be so off that the lawyer would end up losing money compared to what he or she could have gotten for the work if he or she had charged by the hour.)

The advantage of the flat fee for the client is that the client knows exactly how much the job is going to cost and does not have to worry about having to pay more charges. The client also, presumably, gets a lot of efficiency since the attorney knows that the longer the work takes the less value he or she will end up earning. Finally, the client, again presumably, would be saving some money when compared to what the charges would be if billed by the hour.

Now let me introduce to you the concept of the security retainer: an amount of money that the client gives the attorney up-front from which the attorney deducts the value of services as the services are provided. That amount of money belongs to the client until it is earned and if there is any amount left when the task is finished, the attorney is obligated to returned the unearned portion to the client.

Now the question is, how is a flat fee different from the security retainer? Well, presumably the flat fee is earned when agreed to. The client pays the $500 for the contract, whether it takes the lawyer 4 hours or 4 days to prepare. Assume the lawyer charges $100 an hour. If the client was paying by the hour and the contract took 4 hours to prepare, the client would owe $400. But if the client agreed to a flat fee of $500 and the lawyer was able to finish in 4 hours, the client would have to pay $500. Is that unreasonable? In my opinion, not if there was a chance that the work would take more than 5 hours. That is why the client agreed to the flat fee. The client takes the risk of having to pay $100 over the hourly bill, for the chance that he will save a lot more if the work takes longer. In this particular case, it did not work out for the client, but in most cases it does.

The problem is that, concerned with the possibility that clients who agree to a flat fee may end up paying more than what they would have paid if they had agreed to be billed by the hour, some jurisdictions have held that flat fees are not "earned" until the work is done and that any unearned portion must be returned to the client. This is consistent with the basic principle of what I call "no money for nothing" - which means that a fee is unreasonable if it is an expression of value for services that are not provided. BUT this view also eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing.

The latest example comes from the District of Columbia where the District of Columbia Court of Appeals has held that flat fees do not become attorney property — and therefore must be held in trust — until earned by the attorney. The case is In re Mance, 980 A.2d 1196 (D.C. 2009). Go here for a discussion of this case and examples from other jurisdictions.

I've said it before and I will say it again, it is way too early to pronounce hourly fees dead.

Another case of prosecutorial misconduct

Here is yet another report of prosecutorial misconduct. Law.com reported a few days ago that a Santa Clara County, Calif., Superior Court judge cited "egregious" and "grossly shocking" prosecutorial conduct in dismissing a child sexual assault case last week. The judge's order is available here. The story in Law.com is available here. in the order, the judge states that the prosecutor's "numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed."

Is joint representation of criminal defendants per se a conflict of interest?

On December 29, the Illinois Court of Appeals published an interesting opinion that briefly touched on the question of conflicts of interest in the representation of co-defendants in a criminal trial. The case is called People v. Hatchett and it is available here.

In this case, the defendant argued that his conviction should be reversed because, among other things, he was denied effective assistance of counsel. The court rejected all the arguments and affirmed the conviction. The argument regarding ineffective assistance of counsel and the court's response present a couple of interesting questions.

In support of his claim of ineffective assistance of counsel, the defendant argued that defense counsel acted under a conflict of interests by representing both the defendant and another co-defendant during pretrial proceedings. Specifically, he argued that "defense counsel’s dual representation impeded the State from making a plea offer that would have benefitted one defendant against the interest of the other."

This is an interesting take on what constitutes a conflict of interest in the context of joint representation of criminal defendants. Let's start with the basics: IF the state had made an offer to one defendant in exchange for that defendant's testimony against the other, the attorney definitely would have been in a conflict of interest situation. However, in this case, the prosecutor did not make an offer, so the defendant's argument is that the prosecutor would have made an offer had it not been for the dual representation by defense counsel. In other words, the argument is that the defendant did not get the benefit of a plea bargain offer by the prosecutor because the prosecutor did not want to create a conflict of interest for defense counsel.

Given that it is not uncommon for prosecutors to make similar offers regardless of the defendants' representation arrangements, I am not sure the argument is particularly strong.

But let's take it at face value for the moment and consider the consequences. If the defendant's position were correct, it would mean that joint representation in criminal cases would, by definition, in all cases, be a conflict of interest that would result in reversal of a conviction. Why? Because if the prosecutor made an offer, there would be a conflict and if the prosecutor did not make an offer, well, there would be a conflcit too!

But wait, there's more! Interestingly, the court did not consider the argument at all. It held that "this issue is not appropriate for resolution in the context of this direct appeal. Rather, this issue should be appropriately raised in a postconviction proceeding in which the defendant could submit affidavits and present extrinsic evidence at a hearing to determine whether a conflict of interests existed in his trial representation."

Here is the interesting question: given that the defendant's argument is based on the fact that the prosecutor did not make him a plea offer, whose affidavit/what evidence would the defendant need to present to prove the existence of the conflict? Wouldn't the defendant need to get the prosecutor to testify that the prosecutor would have made an offer had it not been for the fact that defense counsel was representing more than one defendant? Good luck with that!

Illinois Appellate Court misses chance to point out prosecutorial misconduct

Sometimes cases catch my eye for what they fail to say rather than for what they do say... Such is the case with a recent decision out of the Illinois Court of Appeals called People v. Moore which is available here.

In this case, the defendant argued he was denied a fair trial and that his conviction should be reversed because, among other reasons, the prosecution made a number of improper comments during opening and closing statements.

One of the statements in question was a remark that the defendant gave another person a car in exchange for the other person's silence about the defendant’s alleged criminal conduct. The prosecutor then added the following: "I have no doubt that [the car] was a gift for his silence." Even though the prosecutor did not present any evidence that the car was given as a gift, he brought it up again in closing saying that the defendant gave the car to the other person as a gift, “maybe sharing in the proceeds, maybe trying to insure their silence."

The comments were improper. When addressing the jury during an opening or closing statement, a prosecutor simply cannot say he or she "has no doubt" about anything. When the prosecutor expressed he had no doubt about the meaning of the defendant’s conduct during the closing statement, the defendant's attorney objected. The trial judge should have granted the objection and admonished the prosecutor or said something to the jury about it.

The prosecutor violated Illinois Rule of PC 3.4(e) which explicitly states that a lawyer shall not ". . . allude to any matter . . . that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. . ."

So what does the court do about all this? Nothing. While recognizing, in the abstract, that a prosecutor’s statement of personal belief is improper, it did not make any mention of the fact that the prosecutor violated the rules of professional conduct. The court also gave the prosecutor a pass on the other statement even though it stated in passing that the prosecutor's claims that the defendant tried to buy the silence of a witness was “unfounded.”

Instead, the court limited itself to solving the argument as it related to the possible reversal of the conviction. Citing precedent cases, the court explained that prosecution comments do not require reversal unless they result in "substantial" prejudice, which has been defined as a substantial impact on the jury's verdict. Since the court did not think the record supported this conclusion, it held the argument was insufficient to support a reversal.

Regardless of whether that is the correct result, I think the court should have admonished the prosecutor and explained the misconduct to make sure other prosecutors will not make the same mistake in the future. The court essentially took a view that can best be described as “no harm – no foul.” Unfortunately, this type of approach does not do much to teach the participants in the criminal justice system the limits of proper advocacy.

Himmel in trouble again

Back in March I reported a hearing board filed an opinion recommending to suspend James Himmel, the protagonist of In Re Himmel, the famous case about the duty to report another lawyer's misconduct, for 30 days because of his neglect of a client's case. See here.

The Legal Profession Blog is reporting today (here) that the Review Board has adopted the recommendation. The opinion is available here.

Another story related to how using social media can cause problems for lawyers and judges

I have posted recently on different problems that can arise related to lawyers and judges using social media such as facebook. See here, here and here, for example. As I reported in one of those posts, the Florida Judicial Ethics Advisory Committee recently issued an opinion holding that a judge can not add lawyers who may appear before the judge as "friends" on a social networking site nor permit such lawyers to add the judge as their "friend."

On a related topic, Law.com is reporting today that a judge in Georgia has resigned within days of the publication of information about his Facebook dialog with a woman who was a defendant in a matter pending before his court. As Law.com reports, the judge's "departure from the bench effectively ends inquiries being made in the circuit from the Georgia Judicial Qualifications Commission, which investigates complaints against judges."

"I call it a retirement," the judge reportedly told the Fulton County Daily Report.

Go here for the full story.

More on the DOJ plans to prevent prosecutorial misconduct

Yesterday I reported (here) that the Federal Dept. of Justice recently issued some guidance memos for all federal prosecutors regarding their obligations when it comes to sharing information with criminal defense lawyers.

Here is a link to the DOJ memos.

Also, today the Wall Stree Journal Law Blog published an article that reviews some of the cases that created the need for the DOJ to go back to basics and that puts the DOJ memos in proper context. The article is called "DOJ Offers Guidance to Prevent Prosecutor Errors: But Will it Work?" and it is available here.

Finally, the White Collar Crime Profs Blog has a short comment on the memos here called "New DOJ Discovery Policies Fall Short," in which Prof. Ellen Podgor concludes "[i]t is good to see DOJ trying to do a better job than past administrations, but what really needs to be done is setting forth clearer rules and statutes by independent parties, as opposed to a working group . . . so that our system does "do justice". . .

When is a settlement valid?

The New York Personal Injury Blog and the New York Injury Cases Blog are reporting on the following interesting case.

Quoting from the NYPI Blog: "At a Brooklyn medical malpractice trial the defendant, at some point, offered 150K to settle. Then, while the jury was deliberating, the plaintiff tried to accept. But a note had been passed to the clerk that the jury had reached a verdict.Did the judge quickly confirm an agreement between the parties and put the settlement on the record? Nope. She did the opposite. And not only did the judge insist on the verdict being taken, but defense counsel remained silent, perhaps smelling a defense verdict after a short deliberation.This exchange ensued in open court between plaintiff's counsel and the judge:

Mr. Jordan: Could I put my request on the record?

The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.

Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?

The Court: Because I said what I have to say. Let's proceed

The jury came back with a $1.45M verdict.

The judge then proceeds to toss out the verdict and asserts that the settlement -- the one defense counsel refused to confirm and she refused to put on the record -- controlled."

Clearly, the plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. The question is: had the case already been settled for $150,000 or would the $1,450,000 verdict stand?

Was this an example of a plaintiff trying to wiggle out of a binding agreement that he wished he hadn't made or an example of the defendant's lawyer trying to have it both ways – keeping silent hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000?

The court of appeals held that given that defense counsel had not acknowledged that a settlement had been reached and that the court had not recorded the verdict, there was no legally enforceable settlement and the verdict stands. The opinion, available in Westlaw already, is called Diarassouba v. Urban.

Is is the attorney-client relationship still an attorney-client relationship if the client takes control of all aspects of lawyering?

Law.com is reporting (here) on an interesting case where the court held that the client (a non-practicing attorney) sought to contractually reserve the right to completely control all aspects of the representationg and yet retain the right to hold him liable for legal malpractice or breach of fiduciary duty. The court held he could not have it both ways. Having insisted on a contract provision with his lawyer that would give him last say over all decision making, the court held the provision turned his attorney/client relationship into an employee/employer relationship that prevented him from suing for malpractice. The unpublished opinion is available here.

What do you have to do to get disbarred...?

I have often complained about the inconsistency within and among jurisdictions when it comes to sanctions and about the ineffectiveness of imposing light sanctions for serious misconduct. Go here and scroll down for a number of posts on this.)

Today I have two more stories to add to this topic.

The first one involves a judge in Tennessee who apparently routinely ordered visitors in his courtroom arrested and forced to submit to drug testing when the judge just felt “a hunch.” The judge believes that he can simply arrest on every hunch he has as what he calls the “routine policy of the court.” The Supreme Court’s Judiciary Court censored his conduct and ordered Moore to “never violate a person’s constitutional rights.” ... as if that was just a simple mistake or something trivial... Despite his admission of misconduct, the judge will be allowed to continue to rule in cases despite his total lack of respect for basic constitutional principles. (As an aside, however, one of the people whose rights the judge violated has sued him in civil court.) Go here for more on this story.

The second story is even worse. This case involves an attorney who failed to do the work he was hired to do for a client, then gave the client a forged and falsely notarized document and assured the client (also falsely) that it had been recorded. When all the lies were exposed, the attorney admitted his actions to his firm and attributed them to stress, his use of cocaine and drinking. The law firm fixed the problem at a substantial cost to the firm and suspended the attorney. When the attorney did not report his own misconduct to the authorities, the firm reported him. He responded to the bar complaint by lying about pretty much everything. He lied about his ongoing cocaine abuse and treatment. He had dropped out of a treatment program by falsely claiming that his father had died. He postponed a meeting with Bar Counsel by falsely claiming that his fictitious nephew had been killed in a traffic accident.

So, in light of the undisputed evidence of neglect, forgery, lies to a client, severe harm to the law firm, lies to the disciplinary authorities and lies to the treatment facility, the board found that the attorney "had trouble telling the truth." Wow! Now that's an understatement. Antonio could have figured that out! (For those of you who are not my students: Antonio is my 5 year old son).

The board also found that the attorney's substance abuse did not cause the misconduct and that the attorney had failed to establish any significant support for mitigation

Yet, the Board rejected a recommendation for disbarment in favor of a three year suspension.

I agree with Mike Frisch, of the Legal Profession Blog, when he says "I understand that the proposed sanction is not all that different from a disbarment. However, disbarment is a meaningful sanction that identifies the type of behavior that a self-regulating profession must condemn. If an informed public infers that a big-firm lawyer got special treatment, so much the worse. This is a disbarment case." Go here for more on this story. Go here for a copy of the decision. (Thanks to the ABA Journal.com for this link.)

Thanks to Jonathan Turley for the information on the first case and to the Legal Profession Blog for the information on the second one.

The limits of proper argument; no prosecutorial misconduct for reference to religion

The Legal Profession Blog is reporting that the Oklahoma Supreme Court has affirmed a death penalty sentence in a case in which the defendant alleged prosecutorial misconduct because of the prosecutor's closing argument. The court rejected the claim of prosecutorial misconduct finding that the prosecutor's brief reference to heavenly judgment was invited by the defense argument in the sentencing phase. The court held that the prosecutor’s brief personal reflections about the forgiveness of God did not, as the defendant "hyperbolically contends, reassure jurors “that they, too, would be forgiven for imposing the death penalty;” nor did it “encourage the jury to follow biblical standards rather than the Court’s instructions." Go here for the text of the opinion.

Parties agree to settle and dismiss case re immunity for prosecutorial misconduct pending before Supreme Court

As I had reported previously (here, here, here and here), last November the Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington, which deals with whether prosecutors should be granted absolute immunity for their conduct in the process of investigating (rather than prosecuting) a case. I was eagerly awaiting the decision in this case since it deals with issues I cover in the two courses I teach (torts and professional responsibility). However, it has just been announced that there will be no opinion forthcoming because the parties have agreed to dismiss the case. The county has agreed to pay $12 million to the plaintiffs. The press release from the respondent’s counsel describing the settlement is available here. For a comment on a similar case out of the Second Circuit go here.

Thanks to the Legal Ethics Forum for the information.

How not to practice law: have affair with married woman, then agree to represent her husband in divorce

I haven't added anything recently to our running list of examples on how not to practice law, so here is a recent case that caught my eye.

Suppose an attorney has an affair with a married woman. Then the husband of the woman hires the attorney to help him get a divorce from her. Can the attorney take the case? Should the lawyer inform the client of the affair before taking the case?

Those are the facts of a case mentioned in the Tennessee Board of Professional Responsibility website. It states (here) that a Memphis lawyer was suspended for one year for engaging in a conflict of interest "by failing to inform his client that he had an affair with the client's wife prior to representing him in a divorce proceeding against the wife."

Thanks for the Legal Profession Blog for the link.

Article on access to representation

Here is a link to an article by the Chief Justices of California and New Hampshire in which they endorse the trend towards unbundling and encourage other innovations to increase access to the civil justice system.

Thanks to Andrew Perlman of the Legal Ethics Forum for the information and link.

Are Michigan public defenders violating their clients constitutional rights?

Legal Ethics Forum is reporting that the Michigan Supreme Court has before it a case where the plaintiffs contend that the public defender systems in their counties are so bad that poor people are pleading guilty because, for all practical purposes, they are given no other choice. More precisely, the issue is whether cash-strapped public defenders are violating the constitutional rights of defendants by encouraging plea bargains too eagerly, as opposed to vigorously fighting the charges. Go here for the full story.

DOJ issues plans to prevent prosecutorial misconduct

Back in October I reported that after a number of instances of prosecutorial misconduct or ineffectiveness in high profile cases, the Dept of Justice announced plans to prevent prosecutorial misconduct (here).

Today, the Blog of the Legal Times is reporting that the DOJ has issued three memos—including a detailed guidance memo for all federal prosecutors—that set forth the steps the department has taken and will take to ensure that prosecutors assess and meet their obligations when it comes to sharing information with criminal defense lawyers. Go here for the full story.

For posts on the many cases of prosecutorial misconduct reported in recent months, go to my section on prosecutors.

Comment on issue of judges using facebook and other social media

I recently posted a couple of stories on whether it was unethical for judges to "socialize" with lawyers through facebook and other social networking media. See here and here. Here is a link to an article by Prof. Anita Ramasastry (University of Washington School of Law) in which she argues that "Florida's ban on judges' "friending" lawyers on Facebook is the right call."

Comment on the more recent news re prosecutorial mishaps

The Wall Street Journal Law Blog has a short comment on the dismissal of charges in the Blackwater case. Go here for the story.

Trying to catch up!

For the past few weeks I was pretty busy preparing exams, grading exams and enjoying the holidays, so I was not very good at keeping the blog up to date. I am now back in business and I will try to catch up over the next few days....

Prosecutorial conduct results in dismissal of charges... again

2009 may have been a record year for reported cases regarding prosecutorial misconduct. If you go to my section on Prosecutors (here) you will find a list of examples from the past few months. And now you should add this piece of news to the list: Citing repeated government missteps, a D.C. Federal District Court Judge has dismissed all charges against several Blackwater guards who were accused of voluntary manslaughter and various serious firearms offenses in connection with a September 16, 2007 shooting of civilians in Baghdad. For more on the story go here and here. The case is US v Slough (available here).